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

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