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Land law problem - Essay Example

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Land law problem

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 ...Show more

Summary

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.
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Land law problem essay example
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