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Quigley v Masterson [2011] EWHC 2529 (Ch)

Severance of a Joint Tenancy – Methods of Severance – Joint Tenants - Notice

Facts

Mr Pilkington and Mrs Masterson were unmarried but had owned and co-habited a property as joint tenants for more than 20 years.  Their relationship broke down, and Mr Pilkington then instructed his solicitors to sever their joint tenancy.  His solicitor’s attempted to do so by serving written notice on Mrs Masterson pursuant to s36(2) Law of Property Act 1925 but failed to do so.  Mr Pilkington’s health deteriorated rapidly and he lost capacity.  His daughter, Mrs Quigley was appointed his deputy by the Court of Protection after a contested hearing where Mrs Masterson also applied to the Court of Protection to sell the home and split the proceeds.  Mr Pilkington then died before any further steps were taken with his property.

Issues

Had the joint tenancy been severed?  Whether the proceedings in the Court of Protection amounted to a ‘course of conduct’ that was sufficient to sever the joint tenancy or not, even if the written notice to sever the tenancy had failed to have been served on Mrs Masterson.

Held

The joint tenancy was severed.  It had in fact been severed by Mrs Masterson herself when she applied to the Court of Protection during Mr Pilkington’s lifetime for an order to sell the home and split the proceeds.  The tenancy had not been severed before this point by mutual conduct, nor by serving of notice under s36(2) Law of Property Act 1925.  Therefore, Mrs Masterson was not entitled to exercise the right of survivorship and both her and Mrs Quigley held the property as tenants in common.


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