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Chapter 10 Interactive key cases
Oral negotiations between co-owners for one to buy the other out, where an agreement had been reached as to the price to be paid, although later revoked with a higher price being demanded, was held effective severance. In reaching the initial agreement, although later revoked, both parties had indicated a common intention to have separate shares in the property and that the right of survivorship should no longer operate between them.
When severing by mutual agreement, the agreement need not be in a specifically enforceable contract. Any agreement must convey an intention to preclude the future operation of the right of survivorship.
A divorce petition merely requesting for such orders to be made in respect of the matrimonial home as may be considered just, did not amount to effective written notice. There was insufficient immediacy, as the request related to future court orders that may be made, and insufficient intention to sever, as any future court order may not have involved any severance.
Written notice must convey an irrevocable and unequivocal intention to sever immediately, whether express or implied.
A joint tenant’s written notice was deemed effectively served when it was sent by recorded post to the co-owned home, even though it was signed for by the severing joint tenant and had never been read by the intended recipient. The fact remained that it could be proved written notice had arrived at the last known place of abode of the other, non-severing joint tenant and that was sufficient.
Provided written notice has been effectively served, it need not be read by the intended recipient(s) to be effective.
The purpose behind a joint purchase of land, to provide four home owners with sea views, was considered to still be continuing when one of the home owners applied to the court under s 14 TLATA 1996 requesting a sale of that land. This, together with the fact that the home owners had covenanted not to sell the land without unanimous or majority vote, led a court to decline ordering a sale of the land.
Upon receiving an application by an interested party under s 14 TLATA 1996 requesting an order to settle a dispute as to whether to sell trust property, a court may decline ordering a sale where the purpose for which trust property was purchased can still be fulfilled (a consideration under s 15 TLATA 1996).
An affidavit in support of a divorce petition, requesting a sale of the matrimonial home and the division of proceeds between spouses, amounted to effective severance by written notice. It indicated sufficient immediacy, in wanting a sale to occur as soon as possible, and by requesting her share of sale proceeds the wife showed that she considered herself to have a distinct and realisable share in the property, separate from that of her husband.
Written notice must convey an irrevocable and unequivocal intention to sever immediately, whether express or implied.
A request for the sale of a co-owned family home under s 14 TLATA 1996 was declined by the court since the presence of three children meant that the purpose for which the property had been purchased (to provide a family home) could still be fulfilled (a consideration under s 15 TLATA 1996).
As for Re Buchanan-Wollaston’s Conveyance [1939].