Published on 13/05/2007

Co-ownership

Two forms of co-ownership
o   Joint tenancy
o   Tenancy in Common

Joint Tenancy
•   Each co-owner owns the whole land, not just a 50% share
o   No distribution of seisin
o   Do not hold proportionate interests as do tenants in common
o   Each joint tenant has a right shared with others to the whole property, but no individual right to any share
o   All joint tenants treated as single owner of property
•   While joint tenants are alive, each joint tenant is able to deal in a portion of the share in property
o   Eg right to sell half share in the property
•   Characterised by 4 unities, and right of survivorship:

Right of survivorship
•   If one tenant dies, the surviving joint tenant takes the whole property
o   The deceased’s interest is extinguished
•   Cannot leave your right to someone else after you die, as it goes to the other joint tenant
•   Company can be joint tenant under Section 25(1) Conveyancing Act
o   Right to survivorship if company dissolved (Section 25(2))
•   If joint tenants die, the one that survives the longest gets the whole property, and is able to pass it under his or her will

Where it is uncertain, the deaths are assumed to have occurred in order of seniority: ie the youngest joint tenant is deemed to have survived the longest
•   Section 35 Conveyancing Act

When joint tenants die simultaneously, the youngest is deemed to have survived the longest
•   Hickman v Peacey[1945]
o   FACTS
-    Bomb station hit by bombers, all joint tenants died

The four unities
1. Unity of Possession
•   Each tenant together with the others is entitled to possess the whole property
o   A joint tenant cannot claim possession of any particular part of the land

2. Unity of Interest
•   Each joint tenant must have identical interest in the property
o   Cant have one on leasehold and one on freehold
o   Must have same potential duration
-    Cant have one with life estate and other with fee simple
o   Cant have one with ¼ interest and other with ¾ interest
o   Cant have joint tenancy split be conveyance

3. Unity of title
•   Each joint tenant must have acquired interest under same document
o   If A and B are joint tenants where land conveyed to them under one deed as joint tenants, and B conveys interest as Joint tenant to C
-    A and C are not joint tenants
•   But, trustee who is appointed later can become a joint tenant
o   Trustee Act (NSW) 1925 Section 9

4. Unity of Time
•   Interest of each joint tenant must be vested at the same time
o   If X conveys property to the heirs of A and B as joint tenants, you wont know who they are until A or B die, it is unlikely that the heirs interests will vest at the same time, so there would be no joint tenancy
•   May not apply in NSW under section 44(2) Conveyancing Act

Tenancy in Common
•   Much less close legal relationship
•   Tenant has a distinct share in the property
o   Share does not have to be equal
•   Can leave interest to someone else
o   No rights of survivorship
•   Only requirement is unity of possession
o   No one tenant can claim particular possession
o   Each tenant is entitled to the whole of the land
o   May have separate title for each share
o   Any combination of interests is possible
-    Eg fee simple, life estate, leasehold interest

Creation of Co-ownership

Prior to Conveyancing Act
•   Common law presumption that a grant or devise of the same legal interest in land to 2 or more people together created a joint tenancy
o   Rebuttable if:
1.   One or more of the 4 unities exists
2.   Grant or devise contained words of severance
•   That create individual shares, eg ‘equally’ or ‘share and share alike’
•   Eg Provision in settlement inter vivos or will that capital or income to be advanced to a child beneficiary for maintenance and education to be debited against that child’s share on eventual distribution made it a tenancy in common
o   Ward
3.   Other indications that a tenancy in common was intended
•   No unity of title

•   Equity prefers to regard parties as Tenants in Common rather than joint tenants
o   Wherever parties are tenants in common of legal interest, they are also tenants in common of equitable interest
o   Joint tenants of legal interest were tenants in common of equitable interest when parties organised affairs in a manner which demonstrated an intention to hold beneficially as tenants in common:
1.   Purchase money not equal
•   Unless parties clearly intended that ownership of the property with right of survivorship
•   If money equal then joint tenancy
2.   Persons advanced money on mortgage
•   Equity presumes tenants in common of beneficial interest in shares proportionate to the respective amounts

Conveyancing Act, Section 26
Presumption that transfer or devise of land to two or more people now creates a tenancy in common (unless exception applies)
•   Not limited to beneficial interest
•   Reverses common law presumption in favour of joint tenancy

Rebutted if expressly create joint tenancy: but must clearly indicate that a joint tenancy desired

Exception where property held by mortgagees, trustees, administrators

Section 26 indicates preference for law to provide tenancy in common, even where the section does not apply
•   If all that is known is that A and B together own the beneficial interest, then in the absence of evidence that they intended a right of survivorship to apply between them they are tenants in common
•   In absence of evidence to contrary, each tenant is common is regarded as holding their share according to the proportion contributed
•   Delehunt v Carmody [1986] 61 ALJR
o   FACTS
-    D and C bought house together.
-    Property put in C’s name, although A and B paid equal share, and had an oral agreement to convert to both of their names
-    C died
o   HELD - D gets half share
•   C held property in a resulting trust in favour of D and C as tenants in common in equitable shares
•   Indirect influence of s26 requires resulting trust giving similar interest as if land conveyed as tenants in common

Where persons entitled to an equitable estate as Tenants in Common become entitled in their own right to the legal estate equal to and co-extensive with that equitable estate, they both hold the legal and equitable estates as Tenants in Common, unless they otherwise agree
•   Section 27 Conveyancing Act

Application to Torrens Title Land
•   Two or more persons may be registered as joint proprietors of an estate or interest of Torrens title land shall be deemed to be entitled to the same as joint tenants
o   Section 100(1) Real Property Act

Rights of Co-owners inter se (amongst themselves)

*Improvements and Repairs
•   No difference in treatment of joint tenants and tenants in common

In absence of agreement, at common law co-owner who renovates or improves the property is not allowed to claim compensation for expenses
•   Leigh v Dickenson [1884]

Passive co-owner has no right to stop work from being done, as long as they are not committing waste
•   Leigh v Dickenson [1884]

When can claim be made?
If court of equity splitting up property between co-owners in partition suit, might give the ‘improver’ more money.
•   Passive right – only useful when co-ownership brought to end
o   Resumption – compulsory acquisition: Brickwood
-    Benefit of improvements reflected in division of proceeds
o   If property being partitioned
o   Sale under court order - 66G Conveyancing Act

What type of improvements can be claimed?
Can claim for improvements only – must be more than mere repairs and maintenance
•   Forgeard v Shanahan (1994) 35 NSWLR 695
o   FACTS
-    De facto relationship, purchased home
-    Names registered as joint tenants
-    Equal contribution to price, with remainder by registered mortgage
-    After break up, Mr F left, and stopped paying mortgage repayments
-    Mrs S kept paying mortgage, rates, water etc
-    Mr F sought 66G order for appointment of trustee for sale
o   HELD - Insurance premiums and pest control cannot be claimed as improvements. Allowance made in favour of owner making mortgage repayments, water and council rates, but that arises from a claim for contribution of payments made by one debtor of a debt jointly owed, and not because of co-ownership

Contribution to mortgage and rates could be equated with claim for compensation for permanent improvements, as improve party’s equity in property
•   Forgeard v Shanahan [1994] NSWLR
o   FACTS
-    De facto relationship, purchased house under joint tenancy, financed by registered mortgage
-    F left in 1981, but paid mortgage repayments till mid 1982
-    S made rest of instalments
-    S claim for contribution, contribution les than occupation fee
o   HELD - As above. Much criticised

An improvement can run with the land
•   Brickwood v Young (1905) 2 CLR 386
o   FACTS
-    Porter thought he owned property, but due to conveyancing error only had a ¼ share with other tenants in common
-    Spent considerable money improving land – building houses
-    Sold property for full value to Brickwood (but Brickwood only gets ¼ share)
•   Purchase price reflected improvements
-    Council resumed property, and Brickwood discovers only owns ¼
o   HELD - Brickwood entitled to compensation for value of improvements as he paid for them
•   Compensation out of resumption moneys
-    Note: as claim in equity, must do equity
•   Had to offset 75% of rent he had received against credut for improvements

Can claim for improvements made as a potential co-owner
•   Cardinaels-Hooper v Tierney [1996]
o   FACTS
-    M and 2 sisters equitable co-owners of land owned by late father
-    Mother had life estate, died in 1990
-    Prior to mothers death, M lived in house with mother, M spent $7870 on landscaping, and value improved by $10,000 (prior to becoming co-owner)
-    After death, leased out rooms for $14,000
o   HELD - M entitled to compensation for improvements made as potential co-owner under s66G Conveyancing Act. $7870 offset against $14,000 before the rest split 3 ways

Cannot recover for maintenance or repairs
•   McMahon’s Case
o   Strong dissent: Kirby J
-    Preventing property from falling into disrepair is a benefit, and recompense should be made, otherwise no incentive to maintain

•   It is unresolved whether the estate of a spending joint tenant co-owner has a claim against a surviving co-owner when the death of the spender terminates the co-ownership through survivorship

Continued on page 2

Continued

Nature of the claim
The interest is an equitable interest
•   Brickwood v Young (1905)
o   As it attaches to land, it can be enforced by successors in title against successors in title (see below)

How are amounts set off?
Claim for the lessor of the increase on the value of land and the money spent
•   Squire v Rogers (1979)
o   FACTS
-    Property jointly owned
-    Co-owner spent $100K on improvements, but as part of this on repairing damage from cyclone, value only goes up $15K
o   HELD - Only $15K payable

Amount is offset against occupation fee or profit
•   Forgeard

*Occupation Fees

When co-owner is in occupation and the others are not, no requirement to make payments to the other co-owners, as that person is merely exercising his/her rights to occupy the building
•   Luke v Luke (1936) NSW
o   FACTS
-    Co-owner in possession for 15 years
o   HELD - Other could not sue, as merely exercising common law right to occupy

Exceptions (ie they have to pay rent if):
0.   Exclusion – ouster clause
o   If co-owner in possession deliberately excludes others
-    Physical expulsion
-    Emotional expulsion
•   If make lives so miserable that they feel they must leave
0.   Offset for improvement
o   Contribution for benefit of occupying offset against claim for improvement
0.   By Agreement – Fixed by market rent
o   Must pay for benefit of possessing the other half

If offset for improvements, Occupation fee should not exceed the value of improvements
•   Forgeard v Shanahan (1994)

For ouster exception, must be wrongful conduct forcing other person out
•   Biviano v Natoli (1998)
o   FACTS
-    A and B co-owners
-    Title in A’s name, but both contributed equity to purchase price
•   Therefore co-owners in equity, tenants in common
-    A got AVO on B, which required B to leave
-    A remained
-    B sues for occupation fee on basis that A ousted B from property
o   HELD - A not liable for occupation in rent
•   Nothing wrongful in As conduct to force B out
-    BUT
•   A knowingly denied Bs title in property when application under 66G
o   This denial amounted to ouster from property
-    So A must pay occupation fee
o   Occupation fee stopped at time she withdrew denial of Bs title

Occupation fee is the market value of the property divided by the shares
•   Biviano v Natoli (1998)
o   Don’t have to pay them your share
-    Ie if two co-owners, occupation fee is half market value, if 3 co-owners, pay 2/3

*Profits/Income

Common Law
No common law duty to account to other shareholders for income property earns
•   Logic:
o   Each co-owners owns full rights to the income, so you do not have to account to other co-owners

Situation under equity

There was Duty to account for income ‘receiving more than comes to his just share or proportion
•   Statute of Anne 1705
o   Interpreted narrowly:
-    Only where co-owner received income or profits from third parties who used or occupied that land as tenant, and paid one co-owner more than their fair share
-    Did not alter the right of one co-owner to retain the whole income and profits where that co-owner had developed or worked the property at his own initiative and expense, and the other co-owner elected not to participate
•   Ie no obligation to share the fruits of one’s labour
•   Equally, if co-owner made a loss, the other would not have to contribute
•   BUT
o   Statute of Anne repealed in NSW in 1969 by Imperial Act Application Act
-    Doubt over whether equity has jurisdiction, see after these cases, which deal with the old presumption

Must share rent received (ie if not earned by hard work)

Passive owner still gets share of the profits, although working owner may get a credit for the expenditure
•   Squire v Rogers [1979]
o   FACTS
-    2 co-owners owned caravan park
•   A lived on site and ran the caravan park
•   B took no interest in the park
-    Active owner spent 100K, but only improved park by 15K
-    Partition suit
•   A wanted recompense for the expenditure
•   B wanted a share of the income that came from the park
o   HELD - B entitled to share of income in property. But, by standing by and watching A spend 100K on improvements, B agreed to his spending. Thus, in court of equity, as a condition to B’s claim for half the income, B had to give A a credit for the full amount spent on the property

Do not have to share profits earned by own hard work
o   Applies regardless of situation – under equity and common law

Do not have to share profits with co-owner that does not contribute to them (second point, above)
•   Henderson v Easton [1851]
o   FACTS
-    2 brothers owned farm as tenants in common
-    Only one did all the work
o   HELD - Brother who worked the land did not have to share profits with fellow co-owner
•   Reese v Reese [1931]
o   FACTS
-    4 brothers owned farm
-    2 worked and 2 did nothing
o   HELD - Only the two that worked the farm got to share profits, as they were receiving no more than their just share or proportion

Situation since 1969
•   Doubt as to jurisdiction of equity
o   Applies when
-    Partition or deceased estate
-    Resumption
•   Still don’t have to share fruits of own labour
o   See above
•   Only have to share income from third party (eg rent)
o   See Squire v Roger (above), which is post 1969
-    Co-owner entitled to set off against liability the outgoings expended to earn income if passive partner made no complaint

No right to account if own owner receives all income from property, as statute repealed
•   Forgeard v Shanahan[1994] NSWLR
o   FACTS
-    De facto relationship, purchased house under joint tenancy, financed by registered mortgage
-    F left in 1981, but paid mortgage repayments till mid 1982
-    S made rest of instalments
-    S claim for contribution, contribution les than occupation fee
o   HELD - No right to account if own owner receives all income from property. Contribution to mortgage and rates could be equated with claim for compensation for permanent improvements, as improve party’s equity in property

*Waste
•   Co-owner cannot be liable for waste, as they own the property
o   Wanton destruction may not be allowed, but this is uncertain

Severance of Co-ownership

Tenancy in Common
•   Terminates when
o   Land all conveyed to own owner
o   Sale or partition under Section 66G of Conveyancing Act

Joint Tenancy
•   Can basically be severed in any way except through a will

Severed by:
0.   Operation of Survivorship
0.   Court order
0.   Sale or partition under Section 66G
0.   Merger
0.   Mutual Agreement
0.   Unilateral Severance

*1. Right of survivorship
•   When land vests entirely in last surviving joint tenant

*2. Court Order
•   When court order impliedly or expressly inconsistent with continuance of joint tenancy
o   Eg Under Family Law Act 1975 (cth)
•   Note
o   No severance at law until execution of deeds (old system) or registration (Torrens Title)
o   May be severance in equity from the date of order

*3. Partition/Sale Under Section 66G Conveyancing Act
•   Co-owner becomes owner of specifically ascertained portion of the land

By agreement
•   Each conveys together or transfers the portion they agreed to accept
•   If land not easily divisible
o   ‘Owelty money’ paid to equalise the interests

Compelling partition
•   No common law right to compel partition of property
•   Statutory right conferred in Partition Acts 1539, 1540
•   Courts allowed to order sale of land and distribute proceeds instead of partition when seen as more beneficial (if hard to divide)
o   Partition Act 1900 NSW
•   Mechanism for terminating co-ownership where owners cannot agree on how ownership should be terminated
o   Section 66G to section 66I Conveyancing Act
-    Also available under Wills, Probate and Administration Act 1898 (NSW) where interests obtained under intestacy
•   Co-owner includes co-owner of
o   Legal or equitable interests
o   Incumbrances such as legal or equitable mortgage
-    Section 66F

Continued on page 3

Continued

Section 66G(1) Conveyancing Act

Court may appoint trustees of the co-owned property (other than chattels) to hold a property in statutory trust for sale or for partition, on application of one or more of the co-owners
•   Section 66G(1)

Statutory Trust for Sale:
•   Trustees sell property and hold proceeds in a way that gives effect to all co-owners rights

Statutory Trust for Partition
•   Trustees partition the property, and pay and necessary equality money, and convey the parts to those entitled under the partition

Discretion

Court ‘may’ appoint trustees: Court has discretion, not an obligation, to make an order
•   Re Jackson (1951)

Court may decline where:
•   Legal title held by trustees, and instrument contains procedure for sale
•   Applicants conduct raises an estoppel against making an application
•   Order inconsistent with contractual or equitable duty of applicant or parties rights binding them to deal with the property a certain way

Court does not have discretion to refuse application merely because of hardship or unfairness

Uncertain whether agreements precluding applications in all circumstances are void
•   Nullagine Investments P/L v Western Australia Club Inc (1993)

Section 66G(4)

If there is an application for a sale under 66G(1), and a co-owner shows that partition will be more beneficial to owners whose shares together exceed half the total, the court may order a partition
•   Court has discretion
•   Onus of showing partition more beneficial rests on parties desiring partition
•   Emphasis on economic, not sentimental reasons

Court not bound to partition property into equal proportions, even where parties are joint tenants
•   May order owelty money to even up division of property

Mortgaged Properties
•   Unless mortgagee agrees, there can be no partition or sale without first redeeming the mortgage
o   S66G(4) and s99F(3)(a) Conveyancing Act
•   Sale subject to mortgagee’s rights unless mortgage redeemed
o   S66F(2)(a), s66G(1) Conveyancing Act
•   For mortgage over entirety, partition will convert the security from one over the whole property to one over the undivided shares
•   When mortgage over undivided share, partition converts security into mortgage over divided share

Effect of Order under 66G
•   Appointment of trustee
o   Co-owners interest converted to right to receive share in proceeds of sale
o   Trustees must sell for best price reasonably obtained
o   Before selling, should:
-    obtain valuation
-    advertise adequately
-    engage competent agents
-    Consult co-owners and give effect to their wishes as far as is consistent with the general interest of the trust for sale
•   Section 66H

*4. Merger
•   If joint tenant acquires a further estate in the land, different from that which they already have, severance occurs
o   Eg A holds land for life with remainder in fee simple to B and C as joint tenants
-    If A conveys life estate to B, joint tenancy severed
•   Life estate merges in the fee simple and destroys unity of interest
•   No severance if the after-acquired estate is of the same nature as that already held
o   Eg A, B, C joint tenants
-    If A conveys share to B
•   B and C are still joint tenants with respect to two thirds of the property

*5. Mutual Agreement/Conduct

Agreement

Joint tenancy may be served in equity by agreement between all joint tenants to hold as tenants in common
•   Must state or give rise to necessary inference that co-owners consider interests as distinct shares, inconsistent with right of survivorship
•   Need not determine the exact shares which entitled to, so long as the mechanism for determining shares is decided
•   Relinquishes the right of survivorship

•   Agreement alone (without deed or registration) is not legal severance, although equity regards them as tenants in common as soon as agreement formed
o   If joint tenant died, relatives would have to prove agreement to gain relief under equity, or interest would pass to other joint tenants

•   Agreement need not be enforceable, as significance is not that it binds the parties, but that it indicates the common intention of severance

Usually embodied in formal document, but informal document sufficient
•   Frewen v Relfe

Oral Agreement may be sufficient
•   Burgess v Rawnsley (1974)

Joint tenancy does not revive if the agreement is repudiated or terminated: ie severance even if agreement short lived
•   Burgess v Rawnsley (1974)

Conduct
•   Severed in equity by a course of conduct by all joint tenants indicating a commonly held belief or assumption that interests are held in undivided shares without the right of survivorship
o   Paying proceeds into separate accounts or treating proceeds as separate portions
o   Consistently dividing income from property for separate use

•   Not precluded merely because joint tenants acting in ignorance of their joint tenancy
•   Onus on party asserting severance to prove sufficient conduct exists
•   Must be engaged in by all tenants
o   Making of mutual wills will sever

If all parties regard themselves as having separate rights, it does not matter that they were ignorant of joint tenancy. Tenancy severed at equity, and becomes tenancy in common
•   Williams v Hensman[1861]
o   FACTS
-    8 children joint tenants at law
-    Executed documents that showed they treated themselves as tenants in common
•   Particularly when one requested payment on account of his share, all joined in a deed indemnifying trustee against responsibility for overpayment if fund diminished
o   HELD - Children regarded themselves as having separate rights, so tenancy severed at equity
•   Re Denning
o   FACTS
-    Three joint tenants consistently and meticulously dealt with profits separately by dividing money and placing it in three individual accounts
o   HELD - As joint tenants regarded themselves as having separate rights, interest was actually that of tenants in common

*6. Unilateral Severance: Breaking one of the four unities
•   When one joint tenant tries to sever without the knowledge or consent of the other joint tenants, by:
( )   Alienation
( )   Conversion

*(i) Alienation: breaking unity of title

Alienation of whole interest
•   Alienation of the whole interest severs the joint tenancy as it relates to that interest
o   If only two tenants
-    Completely destroys joint tenancy
o   If 3 or more
-    Does not affect the joint tenancy between the other co-owners
•   They remain joint tenants with respect to each other
•   Examples:
o   Eg A and B joint tenants
-    If B sells to C
•   A and C tenants in Common
o   Severed as Held with different instruments
o   If A, B and C are joint tenants
-    C sells to D
•   A and B joint tenants, D is tenant in common
o   If A and B are joint tenants with 2/3, with D Tenant in common, and 1/3 each
-    If B dies, A owns 2/3 and D owns 1/3

Cannot prevent party from exercising severance if they wish to
•   Nullagine v WA Club

Involuntary alienation (eg through bankruptcy) severs joint tenancy
•   Paten v Cribb (1862)

Cross-transfer of interests severs joint tenancy, as no longer unity of title
•   Wright v Gibbons (1948) 78 CLR 313 (High Court)
o   FACTS
-    A,B,C joint tenants
-    A and B despised C, wanted to disinherit her without her knowing, as worried she might outlive them
-    A and B cross transferred their interests
o   HELD - Trick worked. When A transferred to B, B and C still joint tenants. When B transfers to A, destroys remaining joint tenancy

Continued on page 4

Continued

Alienation in Equity
•   Severance is immediate in equity, as soon as joint tenant enters into contract
o   If A and B are joint tenants, and A enters contract with C (which will alienate), Equity compels A and B to hold legal title on trust for B and C as tenants in common
-    Corin v Patton

Alienation by Gift
•   Severance where joint tenant makes a gift of their share to a third party, as long as the gift is complete
o   At law,
-    General law:
•   Deed executed and delivered
-    Torrens land:
•   Land registration
o   Equity
-    When donor has done all that is necessary on his part to pass title
•   For then he is bound to hold the interest in trust for the donee

Alienation of Partial interest
•   Ie alienation of only part of joint tenant’s interest, not the whole

Mortgage:
•   Old System Land
o   Results in severance, as there is a conveyance of the legal estate to the mortgagee
-    Similarly for equitable mortgage, as unity of interest broken
•   Guthrie v ANZ Banking says otherwise, however that is generally thought to be incorrect
•   Torrens Land
o   No severance, as it is a charge over the land only
-    Lyons v Lyons 1967
o   Mortgagee’s charge extinguished when mortgagor dies before other tenants, as interest no longer exists
-    Ie bank loses out
o   Transfer of mortgagor’s share to another joint tenant is not free from mortgage

For Torrens Title, when joint tenant transfers encumbered interest to the other joint tenant, the charge is not extinguished by the merger, and there is no bar to the right of a judgement creditor to execute against the charged moiety
•   Guthrie v ANZ Banking Group Ltd (1991)
o   FACTS
-    Mr and Mrs G registered proprietors as joint tenants
-    Mr G guaranteed debt owing to ANZ by a company
-    Immediately after, Mr and Mrs G mortgaged land to ANZ
-    Mortgage secured:
•   Money advanced to them by ANZ
o   Wife understood this
•   Guarantee owed by husband
o   Wife did not know this
-    Marriage dissolved, court order that husband “transfer to the wife all of his right title and interest in the property…the same being subject to the mortgage…and that she indemnify the husband in respect of such indebtedness”
•   Wife now knows of guarantee
o   Disputes extent of charge over her interest in land
-    Transfer from husband showing no encumbrances
-    W claims not bound by guarantee, and that court vested in her the whole interest free of the mortgage to the bank
-    Bank claims husband’s interest passed to W, and whole land subject to mortgage
o   HELD - As stated above. If creditor executes against joint tenant’s aliquot share, there is severance
-    Judicial decree or order that one joint tenant transfer share to co-tenants severs the joint tenancy

Lease
•   Australian Cases suggest lease suspends joint tenancy, so that if joint tenant dies during the lease, tenant’s right to possession is not lost
o   English cases suggest it does sever joint tenancy, as grants exclusive possession to the exclusion of the joint tenant granting the lease
•   But there is some debate over this

Joint tenancy suspended for duration of lease
•   Freize v Unger (1960) (High Court)
o   FACTS
    A and B joint tenants. A grants lease to C
    Argued that lease severed the joint tenancy as it broke the unity of joint possession
o   HELD - Suspended joint tenancy

Alienation by all joint tenants
•   No severance where all dispose of property together
o   Eg if both sell/lease/mortgage their common interest
    Remain joint tenants over the money
o   Sale under 66G does not in itself sever the tenancy

(ii) Conversion

(a) Give interest to trustee to hold it on trust (as alienation above, but for self)
(b) Transfer it to self

Alienation to trustee/gift
•   Severance when transfer aliquot interest to trustee to hold on trust for transferor
•   Severance requires interests to be effectively vested in the trustee (see below)
o   Legally
-    Registration for Torrens land/Deed for old systems title
o   Equity
    Transferor must not be able to resile from the contract
•   So, can transfer to trustee to hold it on your behalf to sever the tenancy

Gift (ie Trust) not completed until donor has done everything required of them to make it effective
o   Must have signed transfer and handed it to trustee (old system)
o   Registration (Torrens)
•   Corin v Patton
o   FACTS
-    A and B joint tenants
-    A gave interest to trustee
•   Deed of trust and transfer executed
•   No steps taken to procure certificate of title from the mortgagee to register the transfer
o   HELD - Interest did not pass to trustee. Joint tenancy not severed
•   Corin v Patton (1990)
o   FACTS
-    A and B joint tenants
-    B gives interest to son, C
•   B signs transfer and hands it to C,
•   B gives C power to get certificate of title off solicitors, and use it to get transfer registered
o   HELD
-    No effective gift, as had not done everything possible
-    Until authority acted upon, authority can be revoked

Alienation to self
-    Severance occurs when convey interest to themselves (under section 24 Conveyancing Act), as it destroys unity of title
o   Must be effective at law
-    Ie deed delivered or registration complete
o   Equity will not uphold a transfer to oneself

Must sign and register the transfer
-    Freed v Taffel (1984)

Conveyancing Act: Old systems title
•   Can convey to self
o   Section 24
o   (which severs the joint tenancy)
•   Must give notice to the parties affected by the severance as soon as practicable
o   Although severance not affected if you don’t
o   Section 30 Conveyancing Act

Torrens title land: Section 97 Real Property Act
(1) Transfer to self severs joint tenancy
(2)If uni-lateral action, before registration, person who severs must provide Registrar general with
(i) Names and Address of joint tenant
•   Ie Registrar general must give notice to those affected
      (ii) Statement that person is not aware of any limitation or restriction on capacity or entitlement to sever the joint tenancy