Other acts of things (severance)

Other acts or things’

Alternative method of severing an equitable joint tenancy under LPA 1925 s 36(2)

Legal basis

LPA 1925 s 36(2) allows severance by notice or ‘other acts or things’

Williams v Hensman [1861]

Established three modes of severance under ‘other acts or things’

Three modes

Unilateral act, mutual agreement, mutual conduct

Unilateral act

One joint tenant acts on their own interest to sever

Key feature (unilateral act)

No consent or knowledge of other joint tenants required

Effect (unilateral act)

Act creates a separate share → tenancy in common

Types of unilateral acts

Total alienation, partial alienation, involuntary alienation

Total alienation

Permanent disposal of equitable interest (sale or gift) → severs

Example (total alienation)

Joint tenant sells interest → buyer becomes tenant in common

Partial alienation

Temporary disposal (mortgage or lease of equitable interest) → severs

Legal mortgage vs equitable mortgage

Joint legal mortgage ≠ severance; mortgage of equitable share = severance

Fraudulent transaction rule

Attempt to dispose of whole property operates on own share only → severs

First National Security v Hegarty [1985]

Fraudulent mortgage treated as equitable mortgage → severance

Involuntary alienation

Bankruptcy transfers interest to trustee in bankruptcy → severs

Mutual agreement

All joint tenants agree to treat shares as separate

Requirement (mutual agreement)

Must show common intention to sever

Form (mutual agreement)

No need for legally binding contract

Burgess v Rawnsley [1975]

Oral agreement to sell share sufficient to sever

Principle (Burgess)

Agreement shows intention to treat shares as separate

Hunter v Babbage [1995]

Draft consent order agreement sufficient to sever

Key idea (mutual agreement)

Focus is on intention, not enforceability

Mutual conduct

Course of dealings showing parties treat interests as separate shares

Definition (mutual conduct)

Behaviour indicating tenancy in common rather than joint tenancy

Difficulty (mutual conduct)

Hard to prove; requires clear mutual treatment of shares

Gore and Snell [1990]

Negotiations alone ≠ severance (no mutuality/finality)

Davis v Smith [2011]

Ongoing dealings recognising separate shares = severance

Dunbabin v Dunbabin [2022]

Mirror wills can indicate mutual conduct → severance

Key distinction

Negotiations ≠ course of dealing unless clear shared intention

Overall principle

Severance depends on intention to treat interests as separate

Main takeaway

‘Other acts or things’ = behaviour showing shift from joint tenancy to tenancy in common