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Re Draper’s Conveyance [1969] 1 Ch 486, ChD

Co-Ownership of Land – Joint Tenancy – Severance

Facts

A husband and wife were joint tenants of their matrimonial property.  As their relationship broke down divorce proceedings were begun.  The wife issued a summons under s17 Married Women’s Property Act 1882 requesting that the house be sold and the proceeds split between them.  To this effect the wife swore an affidavit providing that that the proceeds be distributed equally, or in the alternative the husband would pay her one half of the value of the matrimonial home.  An order for possession and sale was granted by the court.  However, the husband died before the divorce proceedings were finalised.  The husband’s children sought the court to rule that the joint tenancy had been effectively severed, whilst the wife wished for the joint tenancy to remain, so that she could then exercise the right of survivorship over the whole property.

Issues

Whether or not the summons and sworn affidavit had effectively severed the joint tenancy. Whether or not the making of the affidavit indicated an intention of ending the joint tenancy or not.  Whether or not the severance was immediate as required by s36(2) Law of Property Act 1925.

Held

The joint tenancy had been effectively severed.  The issue of a summons and the sworn affidavit indicated a clear and immediate intention to sever the joint tenancy.  Unlike in Harris v Goddard [1983] 1 WLR 1203, CA the intention to sever the tenancy was apparent from the immediacy of the demand that the property be sold and the proceeds split equally.  This satisfied the provisions of s36(2) Law of Property Act 1925 which required that a notice in writing have immediate effect.  As such, the tenancy was severed and the wife could not exercise the right to survivorship of the joint tenancy over the whole home.


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