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