Severing joint tenancy by declaration of trust

In the law of England and Wales, a joint tenancy in relation to land or property is a form of co-ownership where the co-owners hold the property together with unity of possession, interest, title, and time, and importantly, it includes the right of survivorship. This means that upon the death of one joint tenant, their interest automatically passes to the surviving joint tenants, rather than forming part of the deceased's estate.

Severance of a joint tenancy converts it into a tenancy in common, which eliminates the right of survivorship and allows each co-owner's share to be dealt with separately, for example, by passing under a will or intestacy.

Whether a declaration of trust severs a joint tenancy depends on the specific circumstances and the terms of the declaration itself. Under section 36(2) of the Law of Property Act 1925, severance can occur in several ways, including by a notice in writing from one joint tenant to the others expressing an intention to sever, or by an act of a joint tenant operating upon their own share (such as alienation or disposition of that share).

A declaration of trust could potentially constitute such an act if it effectively alienates or disposes of a joint tenant's beneficial interest in a way that treats the shares as distinct, rather than unified. For instance:

– If the declaration explicitly states that the joint tenants hold the property on trust for themselves as tenants in common (perhaps specifying unequal shares or separate interests), this would typically sever the joint tenancy, as it disrupts the unity required for joint tenancy. This is supported by case law such as Williams v Hensman (1861) 1 John & Hem 546, which outlines the methods of severance, including acts operating on one's own share.

– However, if the declaration merely confirms the existing joint tenancy without altering the nature of the beneficial interests (for example, simply declaring that the legal title is held on trust for the joint tenants beneficially without specifying severance), it may not effect severance.

It is crucial to examine the precise wording of the declaration, the intentions of the parties, and any surrounding context. For example, if the declaration is unilateral and amounts to a disposition of the equitable interest, it might need to comply with section 53(1)(c) of the Law of Property Act 1925, which requires such dispositions to be in writing.

Practically speaking, if you are considering whether a specific declaration has severed a joint tenancy, I would recommend reviewing the document in question, along with any related deeds or agreements. If there is uncertainty, obtaining a copy of the title register from HM Land Registry could help clarify the current ownership status, though note that beneficial interests are not always recorded there. In cases of dispute, it may be necessary to seek a court declaration to confirm severance.

If you can provide more details about the declaration or the property in question, I can offer a more tailored analysis.