ARTICLE OF INTEREST: EQUITY FAVOURS TENANTS IN COMMON- EXTRACT FROM HALSBURY LAWS of England > EQUITABLE JURISDICTION (VOLUME 47 (2014) 5TH EDITION) > 4. PRINCIPLES OF EQUITABLE JURISDICTION > (6) EQUALITY IS EQUITY > 109. Equity prefers a tenancy in common. 109. Equity prefers a tenancy in common. The preference of equity for a tenancy in common, which in many cases where transactions have been entered into jointly by parties has the effect of excluding the right of survivorship, furnishes several illustrations of cases where the maxim that equality is equity is applied. Thus, where persons purchase property with money provided by them in unequal shares and take the conveyance to themselves jointly, in the absence of special circumstances1, equity treats the property as belonging to them not as joint tenants but as tenants in common; and, although on the death of one the survivor or survivors holds or hold the entirety of the legal estate, yet in equity the survivor or survivors is or are considered as being trustees for the personal representatives of the deceased purchaser to the extent of his share in the purchase money2. Where, however, parties make a purchase jointly in equal shares, then, where no contrary intention is shown3, they are treated in equity, as at law, as joint tenants4. The latter rule does not, however, apply where the purchase is made for the purpose of a joint undertaking or partnership either in trade or in any other dealing, for the right of survivorship is incompatible with the relationship of partners5, and in every such case, whether the purchase money is advanced equally or unequally, equity treats the parties as tenants in common with regard to their beneficial interests in the property6. Where persons advance money jointly on loan, whether equally or unequally, they are treated as tenants in common in equity with respect to their rights, whether the debt is secured by a mortgage7 or is merely the subject of a personal contract8; and a joint account clause in a mortgage is not treated as necessarily excluding several titles to the mortgage money9. The cases in which joint tenants at law will be presumed in equity to hold the beneficial interest in property as tenants in common are not limited to three categories only, namely purchasers who contributed unequally, co-mortgagees or partners, since there are circumstances where it will be inferred by equity that the beneficial interest is intended to be held by the grantees as tenants in common, as, for example, where the grantees hold the premises for their several business purposes10. Moreover, where property is vested in the parties as joint tenants in equity as well as at law, the joint tenancy is severed by a contract for sale11 or other contract for value12. A legal joint tenancy in land cannot now be severed, but the joint tenancy can be severed in equity in the same manner as a joint tenancy in personal estate13. Open Footnote frame Reveal footnotes 1 Harris v Fergusson (1848) 16 Sim 308; and see Cowcher v Cowcher [1972] 1 All ER 943, [1972] 1 WLR 425. 2 Lake v Gibson (1729) 1 Eq Cas Abr 290; affd sub nom Lake v Craddock (1733) 3 P Wms 158; 2 White & Tud LC (9th Edn) 876; Rigden v Vallier (1751) 2 Ves Sen 252 at 258; Robinson v Preston (1858) 4 K & J 505. 3 Robinson v Preston (1858) 4 K & J 505. 4 Lake v Gibson (1729) 1 Eq Cas Abr 290; affd sub nom Lake v Craddock (1733) 3 P Wms 158; 2 White & Tud LC (9th Edn) 876; Aveling v Knipe (1815) 19 Ves 441; Robinson v Preston (1858) 4 K & J 505. 5 Elliott v Brown (1791) 3 Swan 489n. 6 Jeffereys v Small (1683) 1 Vern 217; Lake v Gibson (1729) 1 Eq Cas Abr 290; affd sub nom Lake v Craddock (1733) 3 P Wms 158; 2 White & Tud LC (9th Edn) 876. See also the Partnership Act 1890 ss 20, 21; and partnership vol 79 (2008) para 116 et seq. 7 Petty v Styward (1631) 1 Rep Ch 57; Rigden v Vallier (1751) 2 Ves Sen 252 at 258; Morley v Bird (1798) 3 Ves 628 at 631. 8 Steeds v Steeds (1889) 22 QBD 537 at 541, DC. 9 Re Jackson, Smith v Sibthorpe (1887) 34 ChD 732. 10 Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] AC 549, [1986] 1 All ER 711, PC. 11 Brown v Raindle (1796) 3 Ves 256. 12 Eg such as an pre-nuptial marriage settlement: Caldwell v Fellowes (1870) LR 9 Eq 410; Re Hewett, Hewett v Hallett [1894] 1 Ch 362. The joint tenancy is not, however, severed by the marriage itself unless the effect is to vest the wifes interest in the husband: Re Butlers Trusts, Hughes v Anderson (1888) 38 ChD 286, CA. 13 See the Law of Property Act 1925 s 36(2); and real property and registration vol 87 (2012) para 206
Posted on: Sat, 08 Nov 2014 19:27:03 +0000
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