An agreement for sale by the joint tenants prior to the receipt of the proceeds

An agreement for sale by the joint tenants prior to

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An agreement for sale by the joint tenants, prior to the receipt of the proceeds of sale An agreement for sale by all the joint tenants does not sever the joint tenancy until the proceeds of sale are received Rather the joint tenancy is converted into a joint tenancy over the proceeds of sale As a result, if a joint tenant dies after the property has been sold, but prior to the receipt of the proceeds, the surviving tenant, on receipt of the proceeds of sale, will be entitled to all the proceeds pursuant to the rights of survivorship: Re Allingham [1932] Mortgage by one joint tenant Old system mortgage: by one joint tenant severs the joint tenancy , as it operates at conveyance: Re pollard’s Estate (1863) Torrens title: by one joint tenant does not sever the joint tenancy, as it operates as a charge Accordingly, a mortgagee who only has an interest in that part of the property held by one joint tenant runs the risk that the mortgagor will predecease the other joint tenants An estate of a deceased joint tenant retains no interest in the property by virtue of the operation of the right of survivorship: Lyons v Lyons [1967]
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Lease by one joint tenant: no severance A lease by one joint tenant does not sever the joint tenancy, except for the term of the lease: Frieze v Unger [1960] Agreement by all the joint tenants A transfer by all joint tenants to themselves as tenants in common converts the joint tenancy into a tenancy in common: Williams v Hensman (1861); Conveyancing Act s 45A; Real Property Act s 99 Severance by conduct English courts recognised severance by conduct: Burgess v Rawnsley [1975] Corin v Patten found that this is not good law in Australia Severance by merger A joint tenancy is severed if one of the joint tenants acquires a further interest in the land which is different from that which is already held as joint tenant E.g. where A holds a property for life, with remainder to B and C as joint tenants. Should A transfer the life estate to B, the joint tenancy between B and C would be severed because there would cease to be any unity of interest between B and C Severance by unlawful killing Equity does not allow a person to benefit from their own crime Forfeiture Act 1995 (NSW) Precludes someone who has unlawfully killed another from benefiting from his/her own crime, unless the Supreme Court, pursuant to s 5, concludes that justice requires the forfeiture rule to be modified 5 Power of Supreme Court to modify effect of forfeiture rule (1) If a person has unlawfully killed another person and is thereby precluded by the forfeiture rule from obtaining a benefit, any interested person may make an application to the Supreme Court for an order modifying the effect of the rule. (2) On any such application, the Court may make an order modifying the effect of the forfeiture rule if it is satisfied that justice requires the effect of the rule to be modified.
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