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priority over a mortgagee who is seeking to take possession of a mortgaged property. In these cases the courts will also look at the parties’ actions and their knowledge, and will impute to them an ‘intention’ on the basis of these factors. Again, as in the severance cases, this can lead to strained reasoning: claimants who had no knowledge, or at any rate no real appreciation, of events that were happening around them are deemed not merely to know about those events, but also to have formed a particular intention as to the (even less appreciated) legal consequences of the events. Similar reasoning can be detected in cases where the central issue is not whether the parties have terminated a joint tenancy (or, as in the mortgage cases, formed an ‘intention’ as to priority between claimants), but whether they have agreed that there should be any form of co-ownership at all. When the courts investigate claims that a constructive trust has been created, very similar problems of ‘intention’ arise, and for the same reason: the acts of the parties in very different (and, in general, happier) circumstances must be scrutinised in the light of the eventual breakdown of their relationship.

The early nineteenth-century approach appears somewhat more satisfactory. The cases from this period may include formal rhetoric, terms such as ‘course of dealing’, ‘intention’ and ‘inferred agreement’, but it is apparent that much of this language is designed simply to justify (or indeed conceal) the exercise of a broad notion of equity. Where the right of survivorship caused injustice, the courts would attempt to remedy that injustice. Page Wood’s judgment in Williams v. Hensman, adopting and adapting the ‘course of dealing’ from Jackson v. Jackson and quietly approving the bold decision in Wilson v. Bell, was thus not a mere reiteration of long-established principles, but part of an incremental progression towards a more liberal approach. It would be unfortunate if either an over-close study of Page Wood’s impromptu words, or an over-zealous search for their antecedents, were to hinder this.

Powerful as this analysis is, that is not how history has judged a dictum which today is increasingly regarded, in almost in a formalistic way, as articulating the three means by which a severance at common law might arise.

16.2.2.3.Acting upon one’s share

Despite the logical fallacy considered above, this is the most unproblematic aspect of modern-day severance and is simply a different formulation of the rule that destruction of any of the unities of interest, title or time destroys the very basis of the joint tenancy (cf. the loss of unity of possession which terminates the co-ownership itself). For example, if a joint tenant sells his ‘share’, unity of title is lost, while if he decides to mortgage it that necessarily terminates the unity of interest. It might seem obvious but it is important for what comes next to note that severance under this head only requires a unilateral (but irrevocable) act. Difficult theoretical questions arise as to what happens if a joint tenant secretly mortgages his share in circumstances where the other joint tenants are none the wiser. It would seem there is no objection to concealed acts amounting to severance under this head (see, for example, First National Securities v. Hegerty [1985] QB 850 and Ahmed v. Kendrick (1988) 56 P&CR 120 at 126). But would the heirs of the

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However, when it comes to dividing up assets in the family home, the House of Lords at least has set its face against imputing agreements (at least in the context of constructive trusts – see Pettitt v. Pettitt [1970] AC 777 and Gissing v. Gissing [1971] AC 886 and generally Moffat, Trusts Law, pp. 454–8 – but cf. Midland Bank v. Cooke [1995] 4 All ER 562 and in another context Bristol & West Building Society v. Henning [1985] 2 All ER 606 and Equity and Law Home Loans v. Prestidge [1992] 1 All ER 909). It could, of course, be argued that the same arguments do not apply in the context of severance where there is little likelihood that imputing an agreement to sever will have any effect on third party lenders or transferees in the way it can when imputing an agreement to share the proceeds in the constructive trust setting. Nonetheless, against this backdrop, the courts would seem to have little appetite to begin imputing agreements to sever, particularly as a less problematic means of ushering in a more liberal approach to severance already exists in the form of mutual conduct.

16.2.2.5.Mutual conduct

Mutual conduct releases the courts from the need to find an agreement to sever, by focusing on the course of dealings between co-owners to establish whether they regarded themselves as in effect owning a severed share as co-tenants. Rather than looking backwards to (implicitly) establish the co-owners’ knowledge as to the circumstances of their co-ownership, this approach looks forward to take account of the co-owners’ mutual assumptions and aspirations in respect of the co-owned property.

Given the relative ignorance of most co-owners, this approach has obvious advantages providing the court with a means of adopting a sensible conclusion as to whether the parties acted in such a way to one another as to make survivorship no longer an appropriate mechanism for allocating their property rights on death. To those who argue that this sounds like the worst excesses of Denning’s Court of Appeal and a return to palm tree justice, we would argue that, in the particular circumstances of survivorship (where one is not dealing with interests that might impinge on third party lenders or transferees), there is no downside to adopting a stance that emphasises fairness, and (as Peter Luther argued above) is fully in line with the stance adopted by Page Wood VC in Williams v. Hensman. It would be wrong, however, to give the impression that the courts have embraced such an approach. On the contrary, they have adopted a somewhat narrower view, as represented by the majority opinion in Burgess v. Rawnsley which we shallconsider in Extract 16.2 below, along with Denning’s more radical approach, after first considering the statutory form of severance.

16.2.2.6.Statutory severance

In addition to the common law forms of severance, a statutory form also exists under section 36(2) of the Law of Property Act 1925, whereby a joint tenant can unilaterally sever his interest by serving a written notice on all the other joint tenants. Unlike the common law forms of severance, which apply to joint tenancies of all types of property, it is arguable that this additional mechanism only applies to land (but