Pawlowski, Mark ORCID: https://orcid.org/0000-0002-5473-5809 and Brown, James (2013) Co-ownership and severance after Stack. Trust Law International, 27 (2). pp. 59-67. ISSN 0962-2624

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Abstract

This article considers the point at which the joint beneficial tenancy under the default rule in Stack v Dowden [2007] 2 AC 432 is severed so as to give rise to a tenancy in common under which the co-owners have distinct and separate beneficial shares in the family home. The answer to this question may have an important practical consequence if one of the joint tenants dies during the period of co-ownership and (in the absence of any severance by mutual agreement or written notice under s.36(2) of the Law of Property Act 1925) the deceased's estate claims there was a fresh and different common intention to share beneficially as tenants in common generating an automatic severance of the joitn tenancy which (in turn) brought to an end any right of survivorship in favour of the survinging joint tenant. A number of options present themselves but none of these, in the writers' view, provide an entirely satisfactory answer. Is it possible for the joint tenancy to be severed immediately at the point of acquisition? Alternateively, does severance occur when the parties common intention alters post-acquisition as a result of subsequent events? Failing that, will the commencement of legal proceedings seeking a declaration as to the parties' respective shares operate as an effectual severance? Finally, may the court order which settles the parties' beneficial shares operate as a severance regardless of the parties' own actions?

Item Type:	Article
Uncontrolled Keywords:	co-owenrship, benficial joint tenancy, severance, tenancy in common, common intention, constructive trust, equity, co-owners, court order, legal proceedings
Subjects:	K Law > KD England and Wales
Pre-2014 Departments:	School of Humanities & Social Sciences
Related URLs:	Publisher
Last Modified:	14 Oct 2016 09:25
URI:	http://gala.gre.ac.uk/id/eprint/10314

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