1 unilateral act each jt is at liberty to alienate

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1. unilateral act – each JT is at liberty to alienate and sever the interest, losing his own right of survivorship. a. By alienation by a JT whether at law or in equity of their whole/part interest (sell/gift/declaration of trust – in writing). b. You may alienate to a stranger. You may also alienate to each other. You may alienate to yourself – PLA s72(3). When all joint tenants alienate together it is not called severance. c. Alienation must be effective to pass the legal interest. d. Leasing the land converts a joint tenancy to a TIC but only temporarily for the duration of the lease. (So that the lessee can be sure that they have a certainty for the duration of the lease). e. Subsequently acquiring a greater interest does affect a severance. f. Encumbrances – mortgages (TSL), easements, profit a pron – do not sever a joint tenancy because they are not carved out of the fee simple. g. It is not enough for a JT to intend to sever they must take unilateral action. VLRC sought to change this rule and proposed that JTs should be able to sever by lodging a form with the registrar. Parliament did not adopt this recommendation. 2. agreement a. All JTs must be involved in a mutual agreement. b. When does severance take affect under such an agreement? c. Does it need to be a specifically enforceable agreement/K to be effective as a severance? Public Trustee v Fifle Facts: Austrian couple. Married in August of 1965. Became the JTs of a property in Vermont Sth. Their marriage was later dissolved. In 1985 they agreed to settle their respective claims. The agreement was approved by the family court. The X-husband died. Caine J: The agreement demonstrated a common intention by the parties to sever their tenancies. He held that this agreement severed the JT. But they agreed to sell them upon remarriage. They envisaged that during their lifetimes there would be a sale and division. Here the commonly intended mutual severance. Mugabe J: Courts of equity lean towards severance. It need not be an enforceable contract. The fact that this particular agreement was contingent on a future event did not immediately preclude the… 3. course of dealing – sufficient to intimate that all 17
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a. Instead of an actual agreement you can have conduct by all of the JTs by which they all act as if there has been severance. b. There has been little confirmation that this category actually works. c. Does devising property by a will sever a JT? No. (Only exception is where there are mutual wills). Severance by operation of law - Bankruptcy – Sequestration - Homicide o If one JT murders/manslaughters another JT the legal right of survivorship will not operate. o A felon should not be unjustly enriched about criminal activity. o If killing is in justifiable circumstance then it will not affect a severance.
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