Land Law Problem - Essay Example

Part A There are two types of property ownership under English law, legal ownership and beneficial ownership. The fact that the case in question falls under the second somewhat complicates the problem, as will now be seen through a review of the legal implications of the said property ownership type. Beneficial ownership, which may generally be defined as the right to live in and use a particular property, inclusive of the right to share in sales proceeds, is comprised of two types. These are joint tenancy and tenancy in common. Even though Clarissa and Jennifer contributed unequal financial shares to Maple Leaf's purchase price, the fact is that the title, unregistered, was conveyed to them as "beneficial joint tenants." As such, neither has a particular share in the property and both own it, in whole, together. As this is pertinent to both the issue of Jennifer's intended severance and the right of survivorship, it is important to establish that joint tenancy existed. Joint tenancy, as noted in the preceding, holds that each tenant' has an identical interest in the whole of the property, as determined through the four unities of title, interest, possession and time. Under common law, unity of interest is present despite the unequal financial contributions of both parties because conveyance was to both as "beneficial joint tenants." Unity of title is similarly present as both Jennifer and Clarissa received their interest in Maple Leaf under the same conveyance. The same applies to unity of time since both received their share under the same conveyance in fee simple and their titles were vested at the same time. Further, unity of possession also holds as both parties are entitled to the possession of the whole of Maple Leaf and neither Jennifer nor Clarissa may exclude the other as a joint tenant. In further affirmation of the fact that the joint tenancy exists, it is important to clarify that nothing in the case study indicates that the conveyance contains an explicit/express declaration of how Jennifer and Clarissa should hold equitable interests in Maple Leaf. Such declarations are absolute (Goodman v Gallant (1986) Fam 106) and conclusively rebut any presumptions to the contrary. As no such declaration is present, however, one can affirm that neither of the two husbands has a right to the property and that Jennifer's statement, albeit written, does not constitute an act as severance as would convert a joint tenancy into a tenancy in common. First, as regards the question of severance, one may affirm that despite Jennifer's very clear intent, severance was not concluded in this case. In accordance with Section 36(2) Law Property Act 1925, there are four legally recognized methods for severance. The first of these is the actions which any one of the joint beneficial tenants may take operating on his/her share. As per case law, any of the tenants is at liberty to dispose of his/her share in a way that would severe it from the joint tenancy. In Nielson v Fedden (1975), Justice Walton found that a unilateral declaration did not constitute such an act as it did not shatter any of the unities and, hence, did not sever the joint tenancy. Within the context of the stated, Jennifer's statement does not constitute a severance in accordance with the first method. A second method for severance is by mutual agreement as in Burgess v Rawnsley (1975). A third method involves the parties acting, for a sufficiently extended period, as if the property were a tenancy in common, as in Palmer v Rich (1897) but not Greenfield v Greenfield (1979). In the first, the parties acted as if the property in question was a tenancy in common for an extended period but in the second, the parties simply divided the property into two maisonettes and the interests of both were not treated as a tenancy in common for a sufficiently extended period. As regards, Maple Leaf, neither of these two methods, whether severance by mutual agreement nor acting as if it were a tenancy in common, are applicable. The fourth and final method of severance is severance by notice under Section 36(2) Law of Property Act 1925. The fact that Jennifer sent her sister a letter clearly stated her intent to severe does not constitute severance. Further to that, the fact that she begun the legal process to sever but did not conclude it because of her sudden death, does not constitute severance. As per both Section 36(2) Law of Property Act 1925 and Harris v Goddard (1983), severance by notice entails that the notice be given in writing, clearly state the correct intent and be correctly served. Clarissa was not properly served and Jennifer's intended severance was never legally concluded. In other words, severance did not take place. Second, as regards the rights of the husbands, and specifically Jennifer's husband, the right of survivorship holds in this case. As indicated in the preceding, severance did not take place and upon Jennifer's death, Maple Leaf was held by joint tenancy and both Jennifer and Clarissa were joint beneficial tenants. This means that despite Jennifer's having left the entirety of her share to her husband, Maple Leaf passes to Clarissa as the sole survivor. The right of survivorship holds that when a property is held under joint beneficial tenancy, the death of one of the joint tenants means that the property in question passes, in its entirety, to the surviving tenant. In other words, Jennifer's share vests to Clarissa by the right of survivorship and Jennifer's share in Maple Leaf will not devolve under her will. On the basis of the foregoing, therefore, one can affirm that while Jennifer's application for sale might have gone through, the fact is that her sudden death prevented the stated as it brought the severance process to an irrevocable halt. The joint tenancy of Maple Leaf was not severed and, as a result, the right of survivorship holds, implying that Jennifer's husband does not have a right to her share of the property since that share passed, upon her death, to the surviving beneficial joint tenant, Clarissa. Part B As the preceding response clarified, the primary characteristic of joint tenancy, as was the nature of the relationship between Clarissa and Jennifer with regards to Maple Leaf, is the right to survivorship. This means that upon Jennifer's death, Clarissa automatically took over her interest in the property. Maple Leaf, as was argued in the preceding, has devolved to the surviving joint beneficial tenant, Clarissa. In this instance, and in accordance with both case law and the provisions of section 36 of the Law of Property Act (1925), Clarissa is the sole owner of the property in question and, indeed, does not need evidence of grant of probate but only her sister's death certificate. This in itself will pre-empt any Will which Jennifer might have left, leaving her husband her share of the property upon her death. Jennifer's husband and children, irrespective of her will, do not inherit Maple Leaf nor can they legally claim any part of it. The implication here is that Mr. Partridge should be assured that Clarissa is the beneficial owner and can sell the property as such. In order for Clarissa to sell Maple Leaf to Mr. Partridge, she has to show Jennifer's death certificate, thereby establishing that the deceased trustee's share of the property has devolved to her. As Maple Leaf was held as a joint tenancy, this means that each of the joint beneficial owners held the property for, and on behalf of, each other. As Jennifer died prior to completion of the severance, the ownership of Maple Leaf has vested to the surviving joint beneficial owner with it, thus being, up to Clarissa to alienate, sell or convey the property as she so chooses. A number of important conclusions, all of which directly address and allay Mr. Partridge's concerns, can be deduced from the foregoing. The first is that given the right of survivorship, Clarissa is the sole beneficial owner of Maple Leaf and Jennifer's husband and children cannot make a claim. Clarissa is solely entitled and Jennifer's death means that the joint beneficial tenancy in which Maple Leaf was held has resolved into a property held in sole tenancy. Case law supports the aforementioned, as in that of Re Dennis [1995] 3 All ER 171. The second conclusion to be drawn from the above is that, consequent to the applicability of the right of survivorship to this case, the sale procedure has been rendered much less complicated and the conveyance process much simpler. In the first place, under the rule of survivorship, it is not necessary to recover Jennifer's share from her heirs and then to vest it in the surviving trustee/owner, Clarissa, as the deceased trustee's shares have automatically and immediately vested in the survivor. In the second place, the buyer, Mr. Partridge, does not need to trace the devolution of Jennifer's shares but all he needs to do is see Jennifer's death certificate to establish the veracity of Clarissa's claim of entitlement to the conveyance of Maple Leaf to Mr. Partridge. The conveyance procedure, in other words, is simple given the operation of the rule of survivorship. The third conclusion pertains to the indestructibility of survivorship. Jennifer has made a Will leaving her share of Maple leaf to her husband but that need not concern Mr. Partridge. This is because the survivorship takes precedent over any and all testamentary dispositions which Jennifer might have made. A third conclusion pertains to the inviolability of the property from any creditor claims. Supposing that Jennifer had any creditors, the fact is that Mr. Partridge should not be concerned that any have a claim on Maple Leaf. As per the rule of survivorship, Jennifer's share has passed in full to Clarissa and, accordingly, no creditors have a claim on the property. According to the preceding analysis and having earlier established the applicability of the right of survivorship to the case in question, Mr. Partridge should have no concerns regarding his intended purchase of the property. There are no equitable or beneficial owners apart from Clarissa and, indeed, she is the sole beneficial owner of Maple Leaf. Jennifer's death, the death of the co-owner, resulted in Clarissa's emerging as the sole beneficial owner under the rules of survivorship, with the implication being that even in light of Jennifer's testamentary disposition, her husband and children have no claim on the property. The same applies to any creditors Jennifer may have had. As such, Mr. Partridge may conclude the sale, assured in the knowledge that Clarissa is the sole beneficial owner and that there can be no hindrances from equitable owners, as there are none. Read More