When will an equitable tenancy in common be presumed?

The class of cases in which equity will presume a tenancy in common are not confined to cases falling within rigidly-prescribed parameters (such as partnership cases).

In Malayan Credit v Chia Mph (Jack) ([1986] AC 549, PC) (an appeal to the Privy Council from the Singapore Court of Appeal) two businesses agreed to take a joint lease of some office space. They held the lease as joint tenants at law. They had a detailed agreement as to how the office space was to be allocated between them and all outgoings (such as rent and service charge) were shared between them according to the percentage of the office space that they occupied. When the property was to be sold, the question arose as to how the sale proceeds should be shared between them. How were their respective beneficial entitlements to be calculated? Were they equitable joint tenants so that the severance would give rise to a tenancy in common in equal shares? Were they tenants in common and, if so, how was the beneficial entitlement shared between them?

Lord Bingham held that there was no closed list of circumstances (such as partnership) in which an equitable tenancy in common was to be presumed. Where two separate businesses had agreed to share office space (each for its own purposes) and had agreed on an allocation of space and outgoings then it was clear that they intended a beneficial tenancy in common rather than a joint tenancy.

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