6.1.3 Joint Tenancies v Tenancies In Common – Hands on Example
The sections set out above discuss various parts of the law for both joint tenancies and tenancies in common. This section provides a series of problem questions that probe different areas of the matters we have just been examining. The answers to the questions can be found at the bottom of the page, however you are encouraged to attempt to answer the questions first based on your own recall or notes of the topic before looking at the answers.
Always think about the facts, the relevant statutory provision, the cases that interpret that provision, and what the outcome will be based on how those principles and cases apply to the question. As you may have gathered, both the Law of Property Act 1925 and TOLATA 1996 are especially important. Although you would not be expected to give the full citations of cases you cite (just the names of the parties and the year is usually sufficient, the name of the judge giving the ratio is even better!), you will be expected to accurately cite the relevant sections and subsections of the legislation. Simply reciting the name of the statute in your exam without the corresponding section and subsection will not be sufficient.
As a rule of thumb, always look to see if the four unities have been satisfied. If only the unity of possession is present, it is a tenancy in common. If only three of the unities are present, it is still a tenancy in common, because a joint tenancy requires all four unities at once. Finally, remember the differing policy considerations which underlie joint tenancies and tenancies in common, i.e. the issue of survivorship. In family homes, it may be helpful for the interest to pass wholly to the other joint tenant (the spouse or civil partner) without the need for investigating the will and so on. On the other hand, the tenant may wish to have the freedom to dispose of their interest to a named person and not have their interest pass automatically to the other joint tenant, particularly where there is an irretrievable breakdown in the relationship between the joint tenants.
Q1. Albus and Beryl purchased Blackacre together as a married couple. They purchased Blackacre at the same time, and their names are both on the same deed which granted them the title. The relationship breaks down, and Beryl is now looking to leave Albus. She wants to use Blackacre to raise some capital. Thus far, she has made more than 70% of the mortgage contributions. Advise Beryl.
A1. This question is asking whether Beryl can sell her “share” in the property. In joint tenancies, we have seen that the concept of shares does not apply. What is owned by Beryl is wholly owned by Albus. She therefore cannot sell any “share” if it is a joint tenancy. However, because she has made a much greater (unequal) contribution to the purchase price than has Albus, the court may infer, following Stack v Dowden that the parties intended to create a tenancy in common.
Q2. Chuck, Charlie and Doris are joint tenants of Whiteacre. Chuck is Charlie’s older brother, and Chuck and Doris had married after Chuck had gotten divorced. Chuck has a son from his previous relationship, Eric, who also occupies the property and is not a joint tenant. Chuck and Charlie are killed in a car crash, and the evidence says they died at or about the same time. Eric wants to know if he will inherit any of their combined interests in Whiteacre.
A2. The right of survivorship (ius accrescendi) arises here. Given that both Charlie and Chuck were joint tenants with Doris, their interests pass completely and wholly to Doris. None of their interest is transferred to Eric. Given the timing of their death is effectively simultaneous, one could raise a point about the commorientes rule. It is at most an academic issue in this question, but it is worth revising.
Q3. Florence and Gareth live with Gareth’s parents, Harriet and Ian, in Redacre. Harriet and Ian, tenants in common, had paid the deposit and had maintained much of the mortgage payments. Florence and Gareth, acting in their capacities as joint tenants, decide to charge the property to Jupiter Loans Ltd. They don’t tell Harriet and Ian about the charge. Florence and Gareth fall behind on their instalments. When Jupiter Loans looks to repossess the property via the charge, Harriet and Ian come to you for advice. They are hoping that they can continue to live in the property.
A3. This is a reprise of the facts in City of London Building Society v Flegg. You will recall that the tenants in common in that case had effectively no recourse against the bank; as tenants in common, they could not exercise legal rights over the estate. However, it was open to them – as it is open to Harriet and Ian – to pursue a personal claim against the joint tenants. That is at most what Harriet and Ian can get; there is no recourse for them against the holder of the charge.
Q4. Karen, Lynn and Mike live together as tenants in common in Greenacre, each holding a one-third share. They decide that they want to sell the property. Karen thinks it would be best if the property were improved; the condition of the garden and the water pipes, for example, need to be fixed. Karen discovers it will be a considerable expense, and tells Lynn and Mike. They say they just want to sell the property, but if she wants to be out of pocket to make those improvements, she can do so. Karen pays the necessary costs for those improvements. Karen comes to you for advice, asking if she can get payment from Lynn and Mike for the improvements.
This is to do with the tenants’ obligations regarding improvements. Generally, there is no immediate personal right on the part of a tenant in common against the other tenants if that first tenant chooses to pay for improvements. However, at the time of the sale, Karen can then ensure that the amounts Lynn and Mike receive will be subject to effectively two-thirds of the cost of the improvements undertaken.
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