Jacobs v Seward (1872) LR 5 HL 464, HL
Equitable tenants in common and the unity of possession.
Miss Lawrence and Miss Senior were tenants in common of three fields used for growing crop. Miss Senior served the plaintiff a notice to quit his tenancy of the fields, however, unbeknownst, to Miss Senior, Miss Lawrence served a lease to continue his tenancy at a yearly fee. The plaintiff, on account of Miss Lawrence, continued tenancy. Meanwhile, the defendant entered the property on the authority of Miss Senior, removed crop and placed a lock on the gate. The plaintiff claimed that the defendant acted in trespass.
The issue concerned the rights of a tenant in common against his/her co-tenant in common in respect of a co-tenant’s alleged ouster and/or an action of trespass on the property.
The Court propounded the principle that, “so long as a tenant in common is only exercising lawfully the rights he has as tenant in common, no action can lie against him by his co-tenant.” (474). Thus, unless there is a case of legal “ouster” of a tenant, there cannot be a crime of trespass by a co-tenant. On the facts, the Court, firstly, held that when two persons are tenants in common of property, both have the right to enjoyment of the property and chattel connected to the property; the placement of the lock on the gate and the removal of the crop by one co-tenant does not constitute a legal ouster from the property. Secondly, in light of the absence of a legal exclusion nor an unlawful infringement of the co-tenant’s rights, a tenant in common’s entry on the property, no action can be raised against a co-tenant in common in property for the entry and use of the land.
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