INTRODUCTION
3.1 In most other Australian jurisdictions the law relating to unilateral severance of a joint tenancy has developed along similar lines to that of New South Wales. Two jurisdictions, namely Tasmania and England, have legislated to provide additional ways to effect unilateral severance.
TASMANIA
3.2 Section 63 of the Land Titles Act 1980 (Tas) provides that:
(1) A joint tenant of registered land may sever his joint tenancy by a declaration of severance in the prescribed form and registered under the Act.
(2) On registering a declaration of severance in accordance with subsection (1), the Recorder shall notify every other joint tenant of the land by notice in writing.
(3) The mode of severance prescribed by this section is in addition to, and not in substitution for, any other mode available before the proclaimed date to a joint tenant of registered land.
On registration of the severance declaration, a joint tenant holds his or her interest as a tenant in common in equal shares.
3.3 Prior to the enactment of the Land Titles Act 1980, if joint tenants wished to convert their joint tenancy into a tenancy in common they did so by executing and registering a transfer to themselves as tenants in common. A difficulty arose if one joint tenant wished to break the joint tenancy but the other did not. Section 63 was therefore included in the Land Titles Act to provide a simple method of ending a joint tenancy by a dealing called a declaration of severance. Registration of the declaration results in the executor holding the estate as a tenant in common.
3.4 According to the Tasmanian Land Titles Office this method of severance has proved to be satisfactory in overcoming the original problem.30
QUEENSLAND
3.5 The Queensland Law Reform Commission published a report entitled Consolidation of Real Property Acts31 in March 1991. The report contains the Commission’s examination of existing real property law and includes draft legislation to achieve a consolidation of the law. Part 5 of the draft Act deals with joint holders in land and includes a new provision (clause 38) which enables one joint tenant to sever a joint tenancy. At present section 92 of the Real Property Act 1861-1990 (Qld) provides for partition of a joint tenancy, but an instrument of transfer must be executed by both (or all) joint tenants. This is of no assistance if one party is unwilling to sever. Clause 38 provides as follows:
(1) A joint tenancy of land is severed by registering a request to sever.
(2) The Registrar must register a request to sever if a registered proprietor of land who is beneficially entitled as a joint tenant
(3) When more than two joint tenants are beneficially entitled, a severance by one does not sever the joint tenancy of the others.
(4) At the time the request to sever is registered, the registered proprietor who lodged the request becomes entitled as a tenant in common.
The Queensland Law Reform Commission’s proposal with respect to unilateral severance resembles the Tasmanian model.
ENGLAND
3.6 Section 36(2) of the Law of Property Act 1925 (UK) provides that:
where a legal estate (not being settled land) is vested in joint tenants beneficially, and any tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire or do such other acts or things as would, in the case of personal estate, have been effectual to sever the tenancy in equity, and thereupon under the trust for sale affecting the land the net proceeds of sale, and the net rents and profits until sale, shall be held upon the trusts which would have been requisite for giving effect to the beneficial interests if there had been an actual severance.
3.7 No legal estate may be held as a tenancy in common at law, however.32 Consequently, s36(2) only operates to sever a joint tenancy in equity.
3.8 A summons issued under the Married Women’s Property Act 1882 (UK) and a supporting affidavit, requesting that joint property be sold and the proceeds divided, have been held to constitute notice within the meaning of s36(2).33 A notice under s36(2) must show an intention to bring about severance immediately.34 A divorce petition merely requesting an order to be made for the transfer or settlement of a matrimonial home therefore will not constitute notice under s36(2).35
FOOTNOTES
30 Letter of 27 February 1991 from Department of Environment and Planning - Land Titles Office and Registry of Deeds.
31 Queensland Law Reform Commission Report 40.
32 Law of Property Act 1925 (UK), s34.
33 Re Draper’s Conveyance [1969] 1 Ch 486; [1967] 3 All ER 853.
34 Harris v Goddard [1983] 3 All ER 242; [1983] 1 WLR 1203, 1209.
35 id.
