Severance of joint tenancy: must be irrevocable and a mere declaration is not sufficient

Only an irrevocable action can sever a joint tenancy in equity. A mere declaration of intention to sever is not enough.

In Nielson-Jones v Fedden ([1975] Ch 222, [1974] 3 WLR 583 and [1974] 3 All ER 38) the plaintiff and her husband were legal and beneficial joint tenants of the matrimonial home. They both signed a memorandum authorising the husband to sell the home and use the proceeds of sale to buy a home for himself. The husband died after entering into a contract to sell but before the sale had been completed. The question was whether there had been a severance of the joint tenancy.

Walton J held that there had been no severance. The memorandum was too ambiguous to constitute an agreement to sever or an assignment by the wife of her interest in the joint tenancy. The parties’ subsequent conduct (each taking some of the money received as a deposit) was not a course of conduct that could amount to a severance. They were still negotiating about the separation of their financial affairs.

Two important ideas emphasised in Walton J’s judgment are that only irrevocable actions (from which the party severing cannot resile) can amount to a severance and that a unilateral declaration of intention to sever (however clear) is not a severance.

 

In Burgess v Rawnsley Lord Denning MR doubted whether this case had been correctly decided.

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