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above form, or does it show how meaningless the four unities are when it comes to establishing the nature of any particular example of co-ownership? Why would even an affirmative answer to the latter question not undermine the importance of unity of title?

4In A. G. Securities v. Vaughan, could it be argued that the four tenants held a single tenancy of the flat as tenants in common? Why was such an argument not pursued on their behalf and what implications does that hold for a system of law founded upon the doctrine of precedent?

5Why does section 34(2) of the Law of Property Act 1925 prohibit tenancies in common of a legal estate or interest in land, and limit the number of legal co-owners to four? What would be the effect of a transfer purporting to convey a fee simple interest in land to ‘all the second-year law students at New College Oxford absolutely as tenants in common’?

6Why can the legal title to a chose in action be similarly co-owned only under a joint tenancy while the legal title to personalty can be held either under a tenancy in common or jointly? (See Re McKerrell, McKerrell v. Gowans [1912] 2 Ch 648 at 653.)

16.2.2.2.The right of survivorship (and how to avoid it)

The single most important factor distinguishing joint tenancies from tenancies in common is, of course, the right of survivorship which flows logically from the joint tenants’ unity of interest. Under the right of survivorship, the interest of a joint tenant who predeceases one or more surviving joint tenants simply ends with his death. It does not pass to the remaining joint tenants, nor anyone else for that matter, but is simply determined by his death with a consequent reduction in the number of join tenants until only one remains. At this point, the joint tenancy comes to an end, enabling the sole survivor and owner to do as he wishes with his property including, of course, the right to pass his title by will or on intestacy.

Arguably, the right of survivorship is a throwback to a bygone age where the principle tended to reflect the wishes of co-owners in the context of family assets such as smallholdings and stock-in-trade. Whether or not it should still have a role to play in a modern era – in which co-ownership (even in the limited private property sense considered in this section) arises in a multiplicity of circumstances, often marked by a complexity which tends to undermine the simple rationale of survivorship – is perhaps open to question. Admittedly, equity’s distaste for the inequities of survivorship (whereby a beneficial tenancy in common is presumed in all cases of unequal contribution and where the term share – or its equivalent – is used) and the presumption whereby a tenancy in common (either of the legal title in chattels or behind a trust in the context of land) arises in certain types of co-ownership such as business partnerships (see Malayan Credit v. Jack Chia-MPH Ltd [1986] AC 549) does much to redress the balance. Additionally, in relation to the

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1 acting upon one’s share;

2 mutual agreement; and

3 mutual conduct.

But do you think it is sensible to regard this dictum as laying down three distinct (and mutually exclusive) means of severance? Note the logical fallacy inherent in the first category – how can one act upon one’s share as a joint tenant given that a joint tenant has no share in the co-owned property until a severance has been effected? Furthermore, do you think it is sensible to regard the second and third categories as mutually exclusive requirements or simply as different points on a continuum illustrating when it would be equitable for the court to regard severance as having taken place? In his article, ‘William v. Hensman and the Uses of History’, Peter Luther notes that it is possible to read Page Wood VC’s dictum less as an authoritative statement cast in stone than as a staging post en route to a liberal conception of severance based on fairness rather than formality. Luther says:

The concept of the severance cases from the nineteenth century and earlier – focusing as they do on marriage settlements and bequests to a multiplicity of residuary legatees – appears far removed from that of the twentieth-century cases. To a great extent these concern matrimonial or quasi-matrimonial joint tenancy, which must have been a rare phenomenon in Page Wood’s time: property acquired by a couple would normally have been held by the now obsolete tenancy by entireties, in which severance was not possible, while property already owned by a wife when she married would normally have been assigned on marriage to the trustees of her marriage settlement. In many of the modern cases legal action follows the breakdown of the couple’s relationship. This change in focus would appear to have made it even more necessary that a liberal attitude to severance should be adopted. Marriage and co-habitation are, after all, states of choice, which can be brought to an end with (in many cases) as few (or fewer) formalities as are required for their commencement. And, if they are brought to an end there is a good chance that they will end in an atmosphere of acrimony. Couples occupied with terminating their emotional relationship will have quite sufficient to keep their minds busy without considering whether they have formed, or communicated, an unequivocal desire to bring another, possibly unappreciated, legal relationship to an end. In addition, to contemplate, discuss or agree severance of a joint tenancy requires contemplation of one’s own (or one’s partner’s) death. For the vast majority of people this must be an activity engaged in as seldom as possible, and its only physical manifestation will be a reluctant and long-deferred visit to a solicitor to make a will. Cases in which the courts must consider both the breakdown of a relationship and the consequences of the death of one of the parties must inevitably be emotionally charged, and the courts’ continued emphasis on ‘intention’ in such circumstances appears at times distinctly unrealistic. To an extent the problems posed by the severance cases mirror those the courts face in other types of dispute arising out of domestic co-ownership: There is an obvious similarity between the modern severance cases and the line of cases involving equitable co-owners who are seeking to claim