The next step in the chain is when Julian arranges to meet with Anne and Dick with the intention of selling one of them his share. I feel it is important here to turn our attention upon the letter he sent, for if it was found to be ineffective in severing Julians interest it could then be said that by arranging the meeting to discuss “his share” coupled with Anne’s agreement to purchase his share Julian effectively severed his interest through conduct.
However, this argument does not always seem to run consistently through common law for it has been shown through cases such as Gore and Snell v Carpenter4 where it was decided that as negotiations, by their very nature, are not always definite no definite intention to sever should could be concluded. However contrary to this idea Lord Denning suggests in the case of Burgess v Rawnsley 5 that in spite of no firm agreement being reached between the parties their mere participation in negotiations for the sale of a share in a co-owned house amounted to a “course of dealing” that demonstrated sufficient intent to sever.
In this case we will take it to be the truth that Julian was able to sever his equitable interest (however it does not pass to any one, it disappears as if it was never there) in the land through the letter and combined with intention to sever but as we discussed above cannot sever his legal title.
Because he has severed but not sold his equitable interest to another joint tenant he has become a tenant in common for the equitable interest. On the death of both Dick and Anne ownership can be seen to change yet again.
Both are joint tenants (although Dick holds another interest but we will come to that later) of the cottage and as joint tenants are subject to the principle of survivorship. This principle is an inherent characteristic between co-owners in a joint tenancy and states that if a joint tenant dies then his interest in the land is absorbed into the interests of the remaining joint tenants. On the death of any one joint tenant the entire co-owned estates survives to the remaining joint tenants/s.
A single joint tenant has no individual “share” in the land and as such has no share to pass on through his will; it is as if he had never existed. Due to this fact Dicks interest as legal joint tenant effectively vanishes leaving Julian the sole legal owner, and neither Anne nor Dick can pass on their interest in the joint tenancy to whoever stated in their wills, it is simply encompassed by the interests of the other equitable joint tenants. So here we have a situation where Tim is the only remaining joint tenant and so he becomes the sole joint tenant.
He is said to be the surviving joint tenant, in the old adage winner takes all, but this is not totally accurate for there are still other interest in the land so he will become a tenant in common. Dick was also in possession of a fifth share of the tenancy in common upon his death, which he received form Georgina when she left for Australia. The principle of survivorship we saw in joint tenancy does not apply in tenancies in common. This means that Dicks will is adhered to and we are told that he left all his property to Georgina.
So therefore this interest passes back to her. The question is asking us to advise these parties as to the ownership of the cottage. The final ownership I feel is as follows; Julian is the sole legal owner of the property and holds it on trust for himself and Georgina who both have a one fifth share and Tim who has a three-fifths share and all are tenants in common. If Julian therefore was to sell the property to release the capital then it should be divided in such a way.