Original essay question / assignment brief
(a) In order for a joint tenancy to exist there must be four unities. List and
explain what these unites are.
(b)Explain the methods by which a joint tenancy can be severed
# An Explanation of the Four Unities and Severance of a Joint Tenancy
This assignment will address two key aspects of the law of co-ownership in England and Wales. Firstly, it will list and explain the four unities which are required for a joint tenancy to exist. Secondly, it will explain the methods by which an existing joint tenancy can be severed and converted into a tenancy in common.
(a) The Four Unities
For a joint tenancy to be created and to exist in law, four specific conditions, known as the four unities, must all be present. If one or more of these unities are absent, the co-ownership can only be a tenancy in common. The requirement for these four unities to be present was confirmed by the House of Lords in the case of *AG Securities v Vaughan* (1990). The four unities are as follows:
1. **Unity of Possession.** This unity means that each joint tenant is equally entitled to possess the whole of the co-owned land. No single joint tenant can section off a part of the land for their own exclusive use or exclude the other co-owners from any part of the property. This right applies to the entire property.
2. **Unity of Interest.** Each joint tenant’s interest in the land must be identical in its nature, extent, and duration. For example, all co-owners must hold a freehold interest or all must hold a leasehold interest; it is not possible for one to be a freeholder and another a leaseholder. Furthermore, the share of each joint tenant is equal in size, so one person cannot have a greater interest than another.
3. **Unity of Time.** The interest of each joint tenant must vest at the same moment in time. This means that they must all acquire their interest in the property simultaneously. For instance, if a property is transferred to A and B in a deed, their interests are created at the same time. If A was granted an interest on Monday and B was granted an interest on Tuesday, the unity of time would be broken.
4. **Unity of Title.** All the joint tenants must have acquired their title to the land from the same source. This is typically from the same document, such as a single transfer deed or a will. If the co-owners acquired their interests through separate documents, there would be no unity of title, and a joint tenancy could not be formed.
(b) The Methods of Severance
Severance is the process by which a joint tenancy is converted into a tenancy in common. When severance occurs, the right of survivorship (*jus accrescendi*) is destroyed for the severing owner’s share. Severance can happen in a number of ways, which fall under two main categories: statutory severance and common law severance.
The main statutory method is severance by written notice, as provided for under section 36(2) of the Law of Property Act 1925. This allows a joint tenant to sever their share unilaterally, without needing the agreement of the other joint tenants. To do this, they must give a written notice to all other joint tenants that shows a clear and immediate intention to sever their share. The notice does not need to be signed, but it must be properly served, which can be done by leaving it at the last known home or business address of the other tenants.
In addition to statute, there are three common law methods of severance which were set out by Vice-Chancellor Page Wood in the case of *Williams v Hensman* (1861).
* **An act of a joint tenant operating upon their own share.** This occurs when one joint tenant carries out an act that treats their share as separate from the others. Examples include selling their share to a third party, transferring it into their sole name, or taking out a mortgage on their share. Such an act destroys the unities of title and interest.
* **Mutual agreement.** A joint tenancy can be severed if all the joint tenants mutually agree to end it. The agreement can be oral or in writing, but it must show that all co-owners intended to terminate the joint tenancy. The key is that a common intention to sever is shared between all the joint tenants.
* **A course of dealing.** Severance can also happen through a mutual course of dealing between the joint tenants. This method applies where there may not be an explicit agreement, but the conduct of the parties over time shows that they all considered themselves to be tenants in common. For example, in *Burgess v Rawnsley* (1975), negotiations between two joint tenants for one to buy the other’s share were held to be a course of dealing sufficient to sever the tenancy, even though the sale was never completed.
In conclusion, the four unities are essential for the formation of a joint tenancy, while the various methods of severance provide ways for it to be undone, converting the ownership structure and ending the right of survivorship for the severed share.
References
- AG Securities v Vaughan [1990] 1 AC 417
- Burgess v Rawnsley [1975] Ch 429
- Law of Property Act 1925, s 36(2) (https://www.legislation.gov.uk/ukpga/Geo5/15-16/20/section/36)
- Williams v Hensman (1861) 1 J&H 546
