Q&As

Can a joint tenant sever a joint tenancy by serving notice when the other joint tenant has lost capacity?

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Published on LexisPSL on 30/10/2018

The following Property Q&A provides comprehensive and up to date legal information covering:

  • Can a joint tenant sever a joint tenancy by serving notice when the other joint tenant has lost capacity?

While the legal interests in land can only be held as joint tenancy where there is more than one owner (see section 36(2) of the Law of Property Act 1925 (LPA 1925)), the beneficial interests may be held as joint tenants or tenants in common. When land is conveyed with an express declaration that the beneficial interests are to be held as a joint tenancy or such a situation arises as of the presumption to that effect following Jones v Kernott, it is open to any one of the joint tenants to sever it. This has the effect of meaning that the beneficial interests are held as a tenancy in common. As Walton J put it in Nielson-Jones v Fedden:

‘…upon a severance the person severing will tak

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