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Co-ownership III (UK), (14) Application for order: Any person who is a…

- - - - Held:
        
        There is sufficient severance under S.36(2) LPA 1925
        
        Per S.196(3) LPA 1925, held that any notice is sufficiently served as long as it was left at the last known place of abode/business in the UK:
        
        (1) The last known abode of the husband is the matrimonial home
        
        (2) The notice was left in the house as it was placed in the letter box even if it was later removed by the wife
        
        (3) With these circumstances, notice had been duly "served" as per S.196(3)
  - - - Gore & Snell v Carpenter [1990]:
        
        Facts: After parties' marriage broke down they negotiated a separation agreement. A clause of severance of the property was included with divorce proposal but not separate from other papers. Husband died during negotiations over agreement and divorce.
        
        Held: There was no effective severance under S.36 LPA 1925 and property vested in wife by survivorship
        
        Per Judge Blackett-Ord:
        
        The question of intention applies, namely under S.36(2) of the Act. It was argued that the separation agreement put forward by D amounted to such notice and part of a package of proposals. But that was only part of the deed and not accepted. With my judgement, it was not intended, thus no effect as notice under S.36(2)
    - - Harris v Goddard [1983]:
        
        Facts: Husband and wife owned matrimonial home. When relationship broke down, wife in divorce proceedings included a request "for such order with regard to their property as may be just", specifically referring to transfer of property and settlement of property. Husband later died before petition was heard.
        
        Issue: Opposing arguments on whether there is severance:
        
        (1) Council for husband: JI was severed by service of petition. Effect: half of property pass with his estate
        
        (2) Counsel for wife: there's no severance, husband's share pass to wife under principle of survivorship
        
        Held:
        
        CA held that there's no severance because wife did not show immediate intention to sever.
        Per Lawton LJ: "A desire to sever must evince an intention to bring about the wanted result immediately"
      - Re Draper's Conveyance [1969]:
        
        Facts: An applciation for an order directing the sale of the matrimonial home wiht proceeds distributed between parties held to be written notice of severance.
        
        Order was made, but not executed when husband died.
        
        Held: There had been severance
- - - - The formal commencement of litigation regarding JT is consdered an act operating upon one's share
        
        Re Draper's Conveyance [1969]:
        
        Held: proceedings prior to court order (like serving of summons and affidavits) is considered acting on one's share as well as severance under S.36(2) LPA 1925.
      - Mortgaging shares in equty:
        
        Considered as severance where tenant applies to court for an order directing sale of jointly-owned property.
        
        Position is the same even if mortgage itself is fraudulent
        
        First National Securities v Hegerty [1985]:
        
        Facts: Husband fraudulently forged wife's signature when applying for mortgage of family home owned by them as joint tenants. He defaulted on mortgage installments
        
        Held: There is severance at the time of application and held as TIC. Important effect is that wife's share was free of the mortgage.
      - Bankruptcy:
        
        A joint tenant's bankruptcy will sever his interest, and go to his trustee (trustee in bankruptcy will take over as if he's the owner of the property)
        
        Under Insolvency Act 1986: beneficial JT is severed with an order of bankruptcy, property immediately vested with the trustee)
        
        But if debtor dies before bankruptcy order is made, entire-co-owned property will vest in survivor and creditors of deceased joint tenant have no claim to the property
        
        Re Palmer Dec'd (A Debtor) [1994]:
        
        Facts: Husband and wife jointly owned family home. Husband died a debtor but no insolvency order made at time of death so the house passed to wife under rules of survivorship.
        
        Under Insolvency Act 1986: insolvency order won't take effect unless order of bankruptcy is made in court. So if joint tenant dies before order is made, property will vest to the other joint tenant per doctrine of survivorship
    - - Burgess v Rawnsley [1975]:
        
        D (Mrs Rawnsley) met C (Mr Honick) and formed a close relationship. They later jointly purchased a property and C lived as a tenant. Relationship didn't last and D agreed orally to sell her share to C but later changed her mind about the price and asked for more money. C died before negotiations finalised.
        
        Issue: As D decided not to proceed with the oral agreement, is there severance of the JT?
        
        Held:
        
        Court upheld arguments on behalf on C's estate, meant that half the value of property is passed with his estate to his daughter.
        
        That's because even if there's no firm agreement, there was a course of dealing, indicates intention by both parties
        
        If there's no severance then D could claim the whole property per doctrine of survivorship.
      - Types of agreement that severs a tenancy:
        
        An agreement that contemplates severance expressly, like Burgess v Rawnsley [1975]
        
        An agreement during divorce proceedings regarding division of property with specific terms, e.g. equal shares
      - Types of agreement that will NOT sever a tenancy:
        
        An agreement by all co-owners to sell/lease the property
        
        An agreement does doesn't relate specifically to the ownership of the jointly-owned land
        
        Nielson-Jones v Fedden and Others [1975]:
        
        Facts: Parties entered into negotiations about ownership of their property. Negotiations were in general terms and included a memorandum agreeing that husband was to use his 'entire discretion to sell home and proceeds go to his home for himself to live in'. Although husband indicated intention to sever JT, he died before it was put into effect.
        
        Held: Husband had nothing more than authority to sell property on behalf of them both, did not sever tenancy
    - - Long-term assumptions about ownership:
        
        The parties may have acted in such a way that although they purchased as joint tenants they treat their shares as separate and distinct
        
        Gore & Snell v Carpenter [1990]:
        
        Per Judge Blackett-Ord: "A course of dealing is where over the years the parties have dealt with their interests in the property on the footing that they are interests in common and are not joint".
      - Mutual wills
        
        2 people can be bound by the terms of wills where they've drawn up in identical terms and intend to take effect as mutual wills. Usual terms is to leave property to each other and then to 3rd party on death of survivor.
        
        Mutual wills sever JT and the doctrine of survivorship won't apply. This is can exception to the principle that there is no severance in a JT under a will
        
        Second party is bound to leave the share from the deceased party in the way previously agreed, as its seen as a contract between parties
      - Physical division of property
        
        Division of property into separate units won't necessarily amount to a course of dealings leading to severance of interests
        
        Greenfield v Greenfield [1979]:
        
        Facts: House bought jointly by 2 married brothers. Its divided into 2 separate maisonettes, each brother lived with their wives. 1 brother died and his widow claimed to be entitled to hsi share of the property under his will. She argued there is severance via the physical division of property
        
        Held: Its insufficient to constitute a 'course of dealing' and the share passed to the other brother via doctrine of survivorship
        
        Per Fox J:
        
        "The mere existence of separate maisonettes and their separate occupation is not inconsistent with the continuation of a JT. The 2 can exist together. The matter must be considered in light of evidence of actual intention of parties".
      - Inconclusive negotiations over property
        
        When parties discuss severance but don't come to any conclusions that there's sufficient evidence of a course of dealings that amount to severance.