Hannah Clews, solicitor at Bircham Dyson Bell LLP believes that in light of the ruling in Quigley v Masterson, where severance of a joint tenancy was contested, cohabiting couples must be more aware of the pitfalls of a joint tenancy when buying property together. It also provides a warning to practitioners of what can constitute a notice of severance of a joint tenancy.
"The facts of this case are unfortunately all too common. The late Mr Pilkington had a relationship with Mrs Masterson. They lived together in a house as joint tenants but their relationship eventually broke down and Mrs Masterson moved out. Mr Pilkington then unsuccessfully attempted to sever the joint tenancy. Following this Mr Pilkington's health deteriorated resulting in his death and his daughter, Mrs Quigley, became firstly his deputy and then the executor of his estate."
"Mrs Quigley and Mrs Masterson were then left to argue whether there had been effective severance of the joint tenancy. If severance had been effective then 50% of the value of the house would fall within Mr Pilkington's estate rather than pass, by right of survivorship, to Mrs Masterson. This case consequently considered what constitutes effective severance of a joint tenancy."
"As joint tenants, it is necessary for either party to serve a notice on the other tenant/s in order to effectively sever the joint tenancy and lay claim to their share," explains Hannah Clews. "This is a legal requirement which is often little understood by joint tenants but which can have huge ramifications.
"In the Quigley v Masterson case, the tenancy was not severed by mutual conduct. However, the High Court did find grounds for Mrs Quigley's argument that Mrs Masterson had herself severed the joint tenancy when she applied during Mr Pilkington's lifetime to the Court of Protection for permission to sell the house and split the proceeds 50:50. This constituted a severance by way of writing, rather than severance by mutual conduct.
"The warning in the story is that couples or friends who buy properties together should be aware of the difference between a 'joint tenancy' and 'tenants in common'. A joint tenancy is a special form of ownership by two or more persons who have the equal, undivided right to keep or sell the property. Tenants in common own the property in a less restrictive form of ownership. If you buy property as joint tenants then make sure you understand the implications. Don't be left trying to sever the joint tenancy. This case illustrates that severance is not always a straightforward process."
Hannah Clews is a newly qualified solicitor at Bircham Dyson Bell LLP having completed her two years as a trainee with the firm.
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