Severing joint tenancies


On p.131 of the 2nd edition I wrote:

Legally qualified readers might guess that

… (we) HEREBY GIVE YOU NOTICE of her desire to sever the joint tenancy in equity of and in 19 Holt Lane Norwich Norfolk now held by you and John Thomas Chatterbox both at law and in equity by virtue of a Conveyance date …

was intended to convert the joint tenancy into a tenancy in common (so that each owner would now have separate half-shares they could leave by will to other people), but they would at the same time doubt its effect; there is, after all, a difference between wanting to do something and doing it.

Although I hold to my view that

The joint tenancy of 19 Holt Lane, Norwich is severed

is more efficient, I've come across authority that the original wording is effective. In Burgess v. Rawnsley * Lord Denning wrote:

I come now to the question of notice. Suppose that one party gives a notice in writing to the other saying that he desires to sever the joint tenancy. Is that sufficient to effect a severance? I think it is. It was certainly the view of Sir Benjamin Cherry when he drafted s 36(2) of the Law of Property Act 1925. It says in relation to real estates:

…where a legal estate (not being settled land) is vested in joint tenants beneficially, and any tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire or do such other acts or things as would, in the case of personal estate, have been effectual to sever the tenancy in equity, and thereupon under the trust for sale affecting the land the net proceeds of sale, and the net rents and profits until sale, shall be held upon the trusts which would have been requisite for giving effect to the beneficial interests if there had been an actual severance.

* [1975] Ch 429; [1975] 3 All ER 142; 1975 3 WLR 99


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