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Severing a Joint Tenancy - Dunbabin v Dunbabin [2022]

In the recent case of Dunbabin & Ors v Dunbabin [2022] EWHC 241 (Ch), the Court had to determine whether a beneficial joint tenancy of a property had been severed.

Tenants in common v joint tenants

There are two ways in which you can jointly own a property: as joint tenants, or as tenants in common.

As joint tenants, each person owns the whole of the property with the other. If one co-owner dies, their interest in the property automatically passes to the surviving co-owner(s).

As tenants in common, co-owners own specific shares of the property. Each owner can leave their share of the property to whoever they choose. When they die, their share in the property will pass in accordance with their Will, or if they have no Will, in accordance with the intestacy rules.

If a co-owner no longer wishes to hold the property as joint tenants, they can sever the joint tenancy and the property will then be owned as tenants in common.

Dunbabin v Dunbabin [2022] - the facts

Dunbabin v Dunbabin [2022] involved a property which was owned by Mr and Mrs Dunbabin.  They had jointly purchased the unregistered property in 1983. The conveyance was silent as to the beneficial interests and the presumption therefore was that the property was held as joint tenants.

In 2003 Mr and Mrs Dunbabin made mirror wills, both of which included a clause describing “my share” of the property and stating that they had agreed to hold the property “in equal shares as tenants in common”.  In 2008 they again made mirror wills, with slightly amended terms and having removed the mention of the property being held as tenants in common. However, they still referred to “my share” of the property in question.

Mrs Dunbabin passed away in 2016. Mr Dunbabin made a new will in 2019, in which he gave 75% of his residuary estate to one of his sons, Simon (the Defendant), with the other three sons (the Claimants) sharing the remaining 25%.

Mr Dunbabin died in in 2020 and a dispute arose between the children as to whether the property had been owned by their parents as tenants in common or joint tenants. 

If it had been tenants in common, their mother’s share of the property would have passed to her estate and following their father’s death, it would have passed equally to their four sons according to her 2008 will. However, if it had been joint tenants, then her share in the property would have automatically passed to their father upon her death, and therefore on his death, it would have been split as 75% to Simon and 25% to their other three sons. 

The law

If a co-owner no longer wishes to hold the property as joint tenants, they can sever the joint tenancy. Severing the joint tenancy will mean that the property will then be owned as tenants in common.

A joint tenant can effect severance by serving all other tenants with a written notice (section 36(2), Law of Property Act 1925).  There is no need to consult with the other co-owners, or obtain their consent.

A joint tenant serving a notice to sever must ensure that the requirements for valid service are met. These include:

  • That the notice is in writing
  • That the notice is in a valid form
  • That the notice is validly served

Prior to the Law of Property Act 1925, it was held in Williams v Hensman (1861) 70 ER 862 that a joint tenancy can also be severed in any of the following three ways:

  • By acting on a joint tenant's own share
  • By mutual agreement
  • By mutual conduct

The trial

The Judge heard evidence from the parties as well as the solicitor who drafted the wills. 

The claimants argued that the joint tenancy which had arisen when their parents first purchased the property had been severed in one of three ways:

  1. By notice under section 36(2) Law of Property Act 1925, but that the notice had been lost
  2. By mutual agreement (to be inferred by their mirror wills)
  3. By mutual conduct (to be inferred by their mirror wills)

The Defendant relied on his own evidence that his father told him after the death of his mother that he had not signed any severance document and he relied on the fact that no severance documents had been located. 

The solicitor who drafted the wills testified that Mr and Mrs Dunbabin had agreed to sever their joint tenancy and that they had signed a formal agreement to that effect. The will drafter also explained that they had chosen not to register their title to the property with the land registry because they did not want to incur the extra expense. 

Judgment

The Judge accepted the Claimants arguments on each of the three grounds and accordingly found that the beneficial joint tenancy had been severed.

In particular, the Judge relied upon the evidence of the will drafter, and found convincing the inclusion of the property trust clauses in the wills of 2003 and 2008, which would have been “not only unnecessary, but also inexplicable if there had been no severance”.

Furthermore, on the issue of severance by conduct, the Judge held that “the evidence satisfies me that there was a course of conduct (in particular, the making of the mirror wills) which showed that one party (indeed, each party) made clear to the other that that one desired that their property should no longer be held jointly but be held in common”.

You can read the full judgment here.

For more information on this article, please contact Rebecca Milton.

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