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Where am I now? Lawlink > Law Reform Commission > Publications > Report 73 (1994) - Unilateral Severance of a Joint Tenancy
Report 73 (1994) - Unilateral Severance of a Joint Tenancy Table of Contents
BACKGROUND TO THE REFERENCE CONSULTATION ORGANISATION OF THIS REPORT
JOINT TENANCY What is a joint tenancy? The right of survivorship The four unities Joint tenancy distinguished from a tenancy in common Development of joint tenancy Position at common law Statutory position Torrens Title land HOW POPULAR ARE JOINT TENANCIES? SEVERANCE OF A JOINT TENANCY WHY SEVER A JOINT TENANCY?
3. EXISTING METHODS OF UNILATERAL SEVERANCE INTRODUCTION SEVERANCE BY ALIENATION Alienation of real property Old System land Torrens Title land Alienation of personal property SEVERANCE BY CONVERSION Conveyance to a trustee Real property Personal property Direct conveyance to self SEVERANCE BY DECLARATION OF TRUST SEVERANCE BY COURT ORDER Application for sale or partition Alteration of property interests under the Family Law Act SEVERANCE BY UNILATERAL DECLARATION Real property Personal property
4. SHORTCOMINGS OF THE EXISTING MODES OF EFFECTING UNILATERAL SEVERANCE ISSUES PERTAINING TO SEVERANCE OF JOINT TENANCY IN ITEMS OF REAL PROPERTY Transferring interest to trustee to hold on trust Declaration of trust Transferring interest to oneself Old System land Alienation Application for sale or partition Application under section 79 of the Family Law Act 1975 ISSUES PERTAINING TO SEVERANCE OF JOINT TENANCY IN ITEMS OF PERSONAL PROPERTY Problems of severance unique to personal property Severance of joint tenancies in choses in action Identifying the nature of the co-ownership of certain choses in possession 5. WHY SHOULD UNILATERAL SEVERANCE BE SIMPLIFIED? INTRODUCTION SEVERANCE AS A PRESENT RIGHT OF CO-OWNERS JOINT TENANCY AS A MECHANISM OF PROPERTY DISTRIBUTION ON DEATH WHY IS THE PRESENT LAW UNSATISFACTORY? WHY NOT SIMPLY ABOLISH JOINT TENANCIES? CALLS FOR REFORM RESPONDING TO THE CRITICS CONCLUSION
6. REFORM IN OTHER JURISDICTIONS INTRODUCTION OTHER AUSTRALIAN STATES Tasmania Queensland OVERSEAS JURISDICTIONS England Ireland
7. RECOMMENDATION: UNILATERAL SEVERANCE BY REGISTRATION OF A DECLARATION OF SEVERANCE OPTIONS FOR REFORM SEVERANCE BY NOTICE Reasons for rejecting severance by notice Severance by notice produces greater uncertainty Severancy by notice introduces a greater chance of fraud and/or duress REGISTERED DECLARATION OF SEVERANCE CONDITIONAL SEVERANCE ON LODGMENT OF DECLARATION RECOMMENDATION
8. FEATURES OF THE SYSTEM OF SEVERANCE BY REGISTRATION OF DECLARATION SHOULD NOTICE TO THE OTHER JOINT TENANTS BE REQUIRED BEFORE SEVERANCE CAN TAKE PLACE? SHOULD NOTICE TO THE OTHER JOINT TENANTS BE REQUIRED AT ALL? CERTIFICATE OF TITLE EFFECT OF THE SEVERANCE SHOULD THIS METHOD BE THE EXCLUSIVE MEANS OF EFFECTING UNILATERAL SEVERANCE? SHOULD NOTICE FOLLOWING SEVERANCE BE A REQUIREMENT FOR ALL MODES OF UNILATERAL SEVERANCE? FORM AND CONTENT OF THE DECLARATION Content of prescribed RP form “Declaration of severance” Additional formalities POSITION OF JUDGMENT CREDITORS, MORTGAGEES AND CHARGEES Mortgage Old System land Torrens Title land Judgment creditor WHO MAY SEVER UNILATERALLY BY DECLARATION? EXCEPTIONS TO THE GENERAL RULE Old System land Persons holding property as joint tenant by virtue of their office PERSONAL PROPERTY CAVEATS ENLARGEMENT OF JURISDICTION IN PARTITION AND SALE STAMP DUTY ISSUES OF LEGAL PRACTICE
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