INTRODUCTION
6.1 In the previous chapter the conclusion was reached that a simpler method of effecting a unilateral severance should be introduced. The matter has been considered in a number of other jurisdictions. In most cases, the legislatures in those jurisdictions which have considered this particular issue have introduced an additional method of severance, namely: severance by notice (England), declaration of severance (Tasmania) and registration of a transfer (Queensland).
OTHER AUSTRALIAN STATES
6.2 Enquiries conducted in other States of Australia into the law relating to unilateral severance of a joint tenancy are at various stages of completion. In 1980 the Tasmanian government legislated to provide an additional way to effect a unilateral severance of a joint tenancy in real estate, and the Queensland Parliament recently enacted similar alterations to the law in that State. The Western Australian Law Reform Commission is enquiring into severance of joint tenancies by notice as part of a more general review of the law relating to joint tenancies and tenancies in common. A draft report is currently being prepared on this topic.
Tasmania
6.3 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 this 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.
6.4 Upon registration of the declaration the person who executes the declaration henceforth holds the estate as tenant in common. As a matter of practice the Land Titles Office does not require the production of the certificate of title for registration purposes. The Recorder of Titles will only register a declaration of severance which results in the joint tenants holding their estates as tenants in common in equal shares. An unequal apportionment can only be achieved by all parties signing a transfer.
6.5 According to the Tasmanian Land Titles Office this method of severance has proved to be satisfactory in overcoming the original problem.1 No exact statistics are available on the use of s 63. In 1991 the Examination Section of the Tasmanian Land Titles Office and Registry of Deeds estimated that approximately four declarations were lodged per month, the majority relating to matrimonial cases.2
Queensland
6.6 In March 1991 the Queensland Law Reform Commission published a report entitled Consolidation of Real Property Acts3 containing, as the name suggests, a draft consolidation of Queensland real property legislation. The 1994 Land Title Act (Qld) is based largely on the Law Reform Commission’s draft Bill. Section 59 of the new Act, which commenced operation on 24 April 1994, allows for the unilateral severing of a joint tenancy by a joint tenant through the registration of a transfer. Section 59 provides as follows:
(1) A registered owner of a lot subject to a joint tenancy may unilaterally sever the joint tenancy by registration of a transfer executed by the registered owner.
(2) However, the Registrar may register the instrument of transfer only if a registered owner satisfies the Registrar that a copy of the instrument has been given to all other joint tenants.
(3) On registration of the instrument of transfer, the registered owner becomes entitled as a tenant in common with the other registered owners.
(4) If there are more than 2 joint tenants of the lot, the joint tenancy of the other registered owners is not affected.
OVERSEAS JURISDICTIONS
England
6.7 A system of registration of title now governs a large proportion of conveyancing done in England and Wales. However, the system existing in the United Kingdom differs materially from the Torrens system in New South Wales.4
6.8 In England, unilateral severance of a joint tenancy by notice is possible in equity pursuant to the Law of Property Act 1925 (UK).
6.9 In England there are no tenancies in common at law. This form of co-ownership at law was abolished in 1925, in order to simplify the conveyancing process. The object of the reform was to eliminate the need for purchasers of land to investigate the separate title of each tenant.
6.10 A corollary to the rule that a legal tenancy in common cannot be created is that a joint tenancy cannot be severed at law.
6.11 However, provided that the estate concerned is not settled land, it is possible to sever a joint tenancy in equity. Section 36(2) of the Law of Property Act 1925 (UK) facilitates this process. This section 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.
6.12 The issue of a summons under the Married Women’s Property Act, seeking an order that the matrimonial home be sold and that the proceeds be distributed according to the respective interests of the parties, together with the supporting affidavit have been held to constitute notice within the meaning of s 36(2).5
6.13 A notice under s 36(2) must show an intention to bring about severance immediately. Thus a notice in writing which expresses a desire to bring about the wanted result at some time in the future (and not immediately) is not a notice in writing within s 36(2). Accordingly, the general prayer in a divorce petition, asking the Court to exercise its jurisdiction under the Matrimonial Causes Act 1973 does not operate as a notice to sever the joint tenancy in equity because such a prayer contemplates a future exercise of jurisdiction, and furthermore, the Court may make alternative orders.6
6.14 Section 36 deals with all joint tenancies. Previous doubts about the applicability of s 36 to joint tenancies held by husbands and wives have been dispelled.7
6.15 An uncommunicated declaration by one joint tenant cannot operate as a severance.8 However, a prepaid notice of severance properly addressed sent by recorded delivery, though never received, is sufficient to effect severance of the joint tenancy for the purposes of s 36(2).9
6.16 It is far from settled in England whether severance by notice is available in respect of personal property. The first and traditional view is that a declaration of intent does not sever. This was the conclusion reached by Walton J in Nielson-Jones v Fedden and others10 following a complete review of authorities. However, a contrary approach was taken by members of the Court of Appeal in the case of Burgess v Rawnsley.11 Lord Denning expressed his view that s 36(2) of the Law of Property Act is declaratory of the law as to severance by notice and not as a new provision confined to real estate. Without actually pronouncing on the issue, Browne LJ and Sir John Pennycuick both expressed the view that s 36(2) of the Law of Property Act 1925 contemplates that severance by notice is already available (at general law) in respect of personal property.
Ireland
6.17 The Irish Law Reform Commission gave consideration to whether a joint tenant should be able to sever unilaterally a joint tenancy by giving notice in its recent report on Land Law and Conveyancing Law. The Commission declined to make such a recommendation. For reasons not dissimilar to those submitted by the Property Law Committee of the Law Society of New South Wales, the Irish Law Reform Commission concluded that the problems which prompted this suggestion were best addressed by estranged spouses taking advantage of the provisions of the Judicial Separation and Family Law Reform Act 1989 and seeking an order from the court in respect of the property which, if successful, would avoid the risk of the property all passing to the husband on the wife’s death.12 The Irish Commission expressed the view that severance by notice would only be of benefit in a minority of cases and that this solution might create more problems than it solved.
FOOTNOTES
1. Letter of 27 February 1991 from the Land Titles Office and Registry of Deeds, Department of Environment and Planning.
2. Letter of 27 February 1991 from the Land Titles Office and Registry of Deeds, Department of Environment and Planning.
3. Queensland. Law Reform Commission Consolidation of Real Property Acts (Report 40, 1991).
4. R E Megarry and H W R Wade The Law of Real Property (Stevens & Sons, London, 1984) at 195.
5. Re Draper’s Conveyance [1967] 3 All ER 853.
6. Harris v Goddard [1983] 1 WLR 1203.
7. Harris v Goddard [1983] 1 WLR 1203.
8. Burgess v Rawnsley [1975] 3 All ER 142.
9. Re 88 Berkeley Road [1971] 1 All ER 254.
10. [1974] 3 All ER 38.
11. [1975] 3 All ER 142.
12. Ireland. Law Reform Commission. Report on Land Law and Conveyancing Law: (5) Further General Proposals (LRC 44, 1992).
