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You are here: BAILII >> Databases >> Irish Law Reform Commission Papers and Reports >> Judgment Mortgages, Consultation Paper on (LRC CP 30-2004) [2004] IELRC CP30(6) (March 2004) URL: http://www.bailii.org/ie/other/IELRC/2004/CP30(6).html Cite as: [2004] IELRC CP30(6) |
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START OF PAGE 57
6.
CHAPTER 6 SEVERANCE OF JOINT TENANCIES AND
PARTITION
A Introduction
persons are simultaneously entitled to a single piece of land. The
common forms of co-ownership are joint tenancies and tenancies in
common.[1] Four criteria, known as the four unities, must be present in
order for a joint tenancy to exist, namely unity of possession, interest,
title and time. Where present together, these four unities give rise to a
right of survivorship, the defining attribute of a joint tenancy. By
way of contrast, only the unity of possession need be present for there
to be a tenancy in common, whereby each owner has a distinct share
in the property and there is no right of survivorship upon death of one
of the owners.
the same estate so that, for example, a joint tenancy could not exist
between the holder of a life estate and the owner of a fee simple.
That said, unity of interest is maintained notwithstanding that one
joint tenant obtains an additional interest in the property either before
or at the time that the joint tenancy was created. In order for there to
be unity of title all of the joint tenants must have acquired their
interest in the land by the same title, for example by the same will or
deed or the same act of adverse possession. Finally, by unity of time
it is meant that the interest of each of the joint tenants must have
vested at the same time.
shares, upon death of a joint tenant his or her interest will be unable to
pass under a will or according to the rules on intestacy, but will pass
by survivorship. In contrast, because each tenant in common has a
distinct share from the commencement of the tenancy in common
START OF PAGE 58
which is capable of passing to their successors in title, there can be no
question of the other tenants in common enjoying a right of
survivorship. Frequently the motivation for severing a joint tenancy
so as to convert it into a tenancy in common is to terminate the right
of survivorship.
B Severance
tenancy.[2] However it is only where either the unity of interest or
unity of title are destroyed that the joint tenancy will be converted
into a tenancy in common. This is because (a) unity of possession is
essential to both forms of co-ownership and (b) unity of time is a precondition
which must have existed in order for there ever to have
been a joint tenancy and so cannot be destroyed. Lyall identifies four
ways in which a joint tenancy may be severed at law.[3]
(1) Subsequent Acquisition of Another Interest
acquires an additional interest in the property, the unity of interest
will be destroyed and the tenancy severed creating a tenancy in
common.[4]
(2) Alienation by One Joint Tenant to a Third Party
or part of his or her interest to a third party will destroy the unity of
title, thereby severing the joint tenancy. Both of these methods,
subsequent acquisition of another interest and alienation to a third
party, apply to both severance at law and severance in equity.[5]
START OF PAGE 59
(3) Unilateral Dealing
is conveyed for the purpose of holding it to the use of another) to hold
to the use of oneself and by operation of the Statute of Uses 1634 a
joint tenant can sever a joint tenancy and create instead a tenancy in
common. However, because the Statute of Uses 1634 does not apply
to leasehold interests the joint tenant would first have to assign the
property to a third party on trust for the joint tenant as a tenant in
common, and secondly, the trustee would assign the premises to the
joint tenant as tenant in common.[6] In a previous Report the
Commission came to the conclusion that, since each joint tenant has
the chance of ultimately ending up with the entire property through
the right of survivorship, it is unjust that a joint tenant may be
deprived of this chance by the unilateral actions of a fellow joint
tenant.[7] Consequently the Commission recommended that unilateral
severance by alienation, whether to a nominal foeffee so as to retain
an interest or to a third party, be prohibited in all cases. Following
this approach a joint tenancy may only be severed where all the joint
tenants consent to the alienation. Furthermore, since the same policy
arguments apply to unilateral severance effected by a joint tenant
acquiring a further interest, the Commission recommended that a joint
tenant should not be able to sever the joint tenancy by acquiring
another interest without first obtaining the consent of all the other
joint tenants.[8]
(4) Act of a Third Party Under Statutory Powers
tenant's interest in the Official Assignee upon bankruptcy will have
the same effect as alienation by a joint tenant.[9] Furthermore partial
START OF PAGE 60
alienation involving such rights in the property as are inconsistent
with the right of survivorship will also effect severance, for example
the granting of a mortgage or the creation of a life estate.[10] While a
mere incumbrance will not effect a severance, in McIlroy v Edgar[11] it
was held that the registration of a judgment as a mortgage against the
interest of a joint tenant has the effect of severing the joint tenancy.
This was followed in Containercare (Ireland) Ltd v Wycherley[12]
where Carroll J held that as registration had transferred the husband's
interest to the judgment creditor as security, it had the effect of
severing the joint tenancy. According to Wylie doubt remains as to
whether Irish law regards a mere charge as being capable of severing
a joint tenancy, although following the decision in Northern Bank Ltd
v Heggarty[13] this is currently the position in Northern Ireland.
C Judgment Mortgages and Joint Tenancies
another, the legal position where a judgment mortgage has been
registered against a joint tenancy is potentially highly complex.[14]
depending on whether the land is registered land or unregistered land.
Under the law as it currently stands, a judgment mortgage will
operate to sever a joint tenancy of unregistered land, but with regard
to registered land the position is less clear. It is unclear if the effect
of section 71(4) of the Registration of Title Act 1964 is that the
registration of a judgment mortgage severs a joint tenancy. The Irish
courts have yet to decide this issue. There is authority that any
alienation by a joint tenant – including by way of mortgage – severs
the joint tenancy.[15] Of course, a judgment mortgage is not a
START OF PAGE 61
consensual act of the 'mortgagee': rather it is an enforcement
procedure invoked by the judgment creditor.
difference between the effect of a judgment mortgage over registered
and unregistered land respectively. The Commission recommends
that the position be the same with regard to both types of interest in
land – registered and unregistered.
a judgment mortgage on a joint tenancy should be the same whether
the property is registered or unregistered.
severance (as with unregistered land) or not (as is possibly the case
with regard to registered land). Were there to be no severance, and if
the judgment debtor dies before the judgment mortgage is enforced,
the joint interest of the judgment debtor passes upon his or her death
to the non-debtor owner apparently free from the encumbrance
created by the judgment mortgage. However, if there is a severance,
then the interest of the judgment creditor pursuant to the judgment
mortgage would appear to pass with the title to the newly created
tenancy in common. So if the judgment debtor dies before
enforcement of the judgment mortgage, the interests of the judgment
creditor are not thereby defeated where there is a severance.
enforcement of the judgment mortgage, the judgment mortgage would
appear to take effect over the whole property as there is no longer a
severable interest held by the judgment debtor in the property.
operation of unilateral severance.[16] Accordingly the Commission
considers that it is preferable that the existing law be amended so that
registration of a judgment mortgage should not effect a severance.
amended so that registration of a judgment mortgage should not
effect a severance.
START OF PAGE 62
principles should apply in a partition suit – namely that the party with
over half the interest in the property who seeks a declaration of sale
should be granted it in the normal course.
D Partition
established under the Partition Acts insofar as it applies within the
context of a judgment mortgage. The Commission recommends that
the Partition Acts no longer apply to judgment mortgages but that the
judgment creditor bring its application under the new legislation. The
new legislation should then set out the guidelines to be applied by the
court when considering whether to order a sale. Those guidelines
will, of necessity, vary according to whether the property is a family
home or not.
Partition Acts should no longer apply to judgment mortgages and that
new legislation should set out the guidelines to be applied by the
court when considering whether to order a sale.
Note 1 Another form of co-ownership is coparcenary. See Wylie Irish Land Law (3rd ed Butterworths 1997) paragraphs 7.40, 7.48 and 7.52. [Back] Note 2 See Chapter 5 of the Law Reform Commission’s Report on Land Law and Conveyancing Law: (7) Positive Covenants over Freehold Land and Other Proposals (LRC 70 – 2003). [Back] Note 3 Lyall Land Law in Ireland (2nd ed Round Hall 2000) at 436. [Back] Note 4 Connolly v Connolly (1866) 17 Ir Ch R 208; Flynn v Flynn [1930] IR 337. [Back] Note 5 In line with the general precept that equity will regard as done that which ought to be done, it is possible to sever the equitable title (though not the legal title) by entering into a specifically enforceable contract to alienate. Moreover, in Burgess v Rawnsley [1975] 1 Ch 429 it was held that an agreement between the parties by which one agreed to convey an interest in the property to another need not be enforceable as a contract in order to sever the joint tenancy in equity. Equity may also infer such an agreement from the joint tenants’ conduct, for example, where they seem to have treated their interests in the property as severed over a substantial period of time. [Back] Note 6 See Law Reform Commission Report on Land Law and Conveyancing Law (7) Positive Covenants over Freehold Lands and other Proposals (LRC 70-2003) at 50. [Back] Note 9 Re Hayes’ Estate [1901] 1 IR 207. [Back] Note 10 See Wylie Irish Land Law (3rd ed Butterworths 1997) at 440. [Back] Note 11 (1881) 7 LR Ir 521. [Back] Note 13 High Court of Northern Ireland 8 February 1995. See Wylie Irish Land Law (3rd ed Butterworths 1997) at 440. [Back] Note 14 See Wylie Irish Land Law (3rd ed Butterworths 1997) paragraph 13.181; Lyall Land Law in Ireland (2nd ed Round Hall 2000) at 486-489. [Back] Note 15 Wylie Irish Land Law (3rd ed Butterworths 1997) at 440. [Back] Note 16 16 Law Reform Commission Report on Land Law and Conveyancing Law (7) Positive Covenants over Freehold Lands and other Proposals (LRC 70 – 2003) [Back]
