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Land Law

The distinction in equity between the joint tenancy and the tenancy in common is
entirely unnecessary. Even the trained lawyer may find it difficult to deduce which has
been created in any particular circumstances, or whether what was originally a joint
tenancy has been turned into a tenancy in common. Those without legal training do
not stand a chance of understanding these matters - and yet a failure to understand
them can have drastic consequences.

Discuss.

Co-ownership of land exists where two or more persons are simultaneously possess the
ownership rights in this parcel of land. Co-ownership can only exist by way of a trust, which
creates a distinction between legal title (the formal paper title) and equitable interest (the title
to the value). It splits the title into legal and equitable: the formal paper title, held in law
by the trustees, and the title to the value, held in equity by the beneficiaries.

English law used to know four different types of co-ownership, but the Law of Property
Act 1925 has reduced this number to two: joint tenancy or tenancy in common. Those two
types of tenancy have in common two features. First, each co-owner is simultaneously entitled
to possession of all the land: As joint tenants each has the right to occupy and neither can
lawfully exclude the other.1 Secondly, no co-owner is entitled to exclusive possession of any
specific part: They have never had any exclusive right of occupation themselves, to which
they could give effect2.
The joint tenancy is characterised first by the fact that the transfer of land to them has made the
co-owners, vis--vis the outside world, one single owner, as Lord Browned-Wilkinson
defined it in Hammersmith and Fulham LBC v Monk [1992]3. Therefore no co-owner can
claim a specific share of the land. From this is induced the right of survivorship: according to
1

Wiseman v Simpson [1988] 1 WLR 35, 42 per Ralph Gibson L.J., case cited in Mark P. Thompson, Modern
Land Law (4th Edition, OUP, 2004), p. 279.
2
Meyer v Riddick (1990) 60 P. & CR. 50, 54 per Fox L.J., case cited in Thompson, ibid.
3
Hammersmith and Fulham LBC v Monk [1992] 1 AC 478, 492, cited in Thompson, ibid., p. 280.

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section 184 of the Law of Property Act 1925, on the death of one owner, regardless of any will,
the survivor(s) automatically continue to be entitled to the title. Secondly the joint tenancy is
characterised by the four unities underlined in A.G. Securities v Vaughan [1990] per Fox L.J.4:
possession, interest, title, time. Unity of possession has been defined above. Unity of interest
means that the co-owners interests in land must be of the same nature, duration and time (so
where for example an owner possesses a leasehold and the other a freehold, there cannot be a
joint tenancy). Unity of title means the joint tenants must have become co-owners in the same
document, and unity of time, at the same time.
Tenancy in common is characterised by the fact that only unity of possession is required; and
although no tenant has a right to any particular physical part of the land, they are entitled to a
share in the land or its value: the Law of Property Act 1925 refers to the interests of the tenants
as undivided shares. Accordingly, there is no right of survivorship between the tenants in
common: therefore on the death of a tenant, the others do not automatically acquire his share.
The dead tenants share becomes the property of the person entitled under his will.

As far as the legal title is concerned, it can only be held on a joint tenancy, according to
the Law of Property Act 1925, s 1(6) and s 36(2); the only visible difference then is in equity:
the equitable interest can be held either on a joint tenancy, or a tenancy in common, or both.
In equity, there should be an express declaration of trust on the purchase deed: it should be
indicated who owns the equitable interests, whether they own them as joint tenants or tenants
in common, if the tenancy is in common, in what proportions. Section 53(1)(b) of the Law of
Property Act 1925 provides that a declaration of any trust respecting any land or any interest
therein must be manifested and proved by some writing signed by some person who is able to
declare such trust or by his will.
However, as the declaration of trust is not compulsory, it often happens that the transfer of
4

A.G. Securities v Vaughan [1990] 1 AC 417, 431, cited in Thompson, ibid., p. 280.

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deed does not include it. In that case, there will be a tenancy in common if a few different
situations. First, if one of the three unities mentioned above as being part of a joint tenancy
(interest, title, time) is absent. Secondly, if there are words of severance, which clearly
establish shares between the tenants. Thirdly, where the purchase money is provided in
unequal shares. And fourthly where co-owners are business partners.
However a trust of beneficial interest may arise even where no provision was made to
determine it: section 53(2) of the Law of Property Act 1925 provides that the formalities set
out in subsection (1) of section 53 do not affect the creation or operation of resulting, implied
or constructive trusts. Where there is no evidence that the person intended to advance a loan or
make a gift, it was established in Dyer v Dyer (1788)5 that a resulting trust is presumed when a
person buys a piece of land in the name of another; and where a person relied on another
persons promise that they would have an interest in the land, a constructive trust arises.

At any rate, it is possible to transform a joint tenancy in equity into a tenancy in common
at a later time by severing it. Section 36(2) of the Law of Property Act 1925 provides that the
usual way to sever a tenancy is to do so in writing. In addition, Williams v Hensman (1861)
provided three other ways in which a joint tenancy may be severed.6 First an act of any one of
the persons interested operating on his own share may create a severance as to that share.
Secondly a joint tenancy may be severed by mutual agreement. Thirdly there may be a
severance by any course of dealing sufficient to intimate that the interests of all were mutually
treated as constituting a tenancy in common.

As the legal title can only be held on a joint tenancy, it is in equity that the differences
will arise and that choosing a joint tenancy or a tenancy in common will matter.

5
6

Dyer v Dyer (1788) 2 Cox Eq 92

Williams v Hensman (1861) 70 ER 862.

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The first obvious difference between the two types of tenancies is the way the proceeds of a
sale of the property will be divided. In a joint tenancy, although no shares can be identified in
the ownership of the property, the proceeds of the sale will be divided equally between the
owners. However, in a tenancy in common, the proceeds are to be divided proportionally to
how much the tenants have contributed to the original buying price of the property. In any
case, it has been held in Goodman v Gallant [1986]7 that the express declaration of trust is
conclusive. The declaration prevails in the event of a sale, and so even if purchasers of land
contribute unequally but declare a joint tenancy or a tenancy in common in equal shares: the
distribution of the proceeds will not be according to the amount actually contributed.
The next difference between the tenancies is clear in the case of a severance: when a joint
tenancy in equity is converted into a tenancy in common, the person who severed the tenancy
gets a share proportionate not to the contribution they originally made (even if the share was
greater) but depending on the number of joint tenants.
What may be the clearest difference between a joint tenancy and a tenancy is common is
whether the right of survivorship can operate or not. Where the persons are in a joint tenancy
and one of the owner dies, according to section 184 of the Law of Property Act 1925,
regardless of any will, the right of survivorship, ius accrescendi, may operate in the case of a
joint tenancy at law and in equity. Therefore the survivor(s) automatically continue to be
entitled to the title. The will of the dead owner will not be used as regards his share in the
property, as each co-owner was entitled to the whole of the property. However where the
persons are tenants in common, there is no right of survivorship between them; therefore on the
death of a tenant, the others do not automatically get his share. The dead tenants share may be
passed on by a will and so become the property of the person entitled under his will.

The joint tenancy appears to be a less flexible version of the tenancy in common and
7

Goodman v Gallant [1986] 1 All ER 311.

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capable of creating great financial risk for the tenants involved, whether they decide to sell the
property or they die. In addition, the distinction between the two types of tenancy obviously
cannot be very clear to the layman who has not been helped by his solicitor. As Ward LJ said:
ALWAYS TRY TO AGREE ON AND THEN RECORD HOW THE BENEFICIAL
INTEREST IS TO BE HELD. It is not very difficult to do.8

Carlton v Goodman [2002] EWCA Civ 545, para. 44.