Joint Tenancy - Definition - Law Dictionary Home Dictionary Definition joint-tenancy

Definition :

Joint-tenancy. This tenancy is created where the same interest in real or personal property is, by the act of the party, passed by the same matter of conveyance or claim in solido, and not as merchan-dise, or for purposes of speculation, to two or more persons in the same right, either simply, or by construction or operation of law jointly, with a jus accrescendi, that is, a gradual concentration of property from more to fewer, by the accession of the part of him or them that die to the survivors or survivor, till it passes to a single hand, and the joint-tenancy ceases.

Anciently, joint-tenancy was favoured because it did not induce fractions of estates, and returning to early principles the (English) Land Legislation of 1925 has employed the tenure generally as the machinery by which legal estate may in such cases always be in some person, called the estate owner, who is competent to give a title to the whole estate without the concurrence of other parties. that legal estate has been vested in trustees for sale as joint-tenants in the following cases, in joint-tenancy, estates in common or undivided shares, and coparceners; see infra. For the purpose of limitations over, it was until (English) Land Legislation of 1925 became law much more accommodating than a tenancy in common, unless cross-remainders are expressed or implied. The law itself now adopts it in cases of trustees for sale upon the statutory trusts for sale [see (English) L.P. Act, 1925, ss. 34 et seq.], assignees in bankruptcy, and others, though they differ in some respects from simple joint-tenants.

Before 1926 there might be a joint-tenancy for life, or in fee, or in remainder, but not in tail, unless the donees, being male and female, might lawfully marry; otherwise the donees possess estates for life only, with several inheritances in tail. An estate cannot be granted to two or more jointly and severally, for severally is repugnant and they take as joint-tenants.

This and the following paragraphs still hold good in respect of equitable interests in joint estates in land, the beneficial ownership of a legal estate in land of joint-tenants having been abolished by the (Eng-lish) Law of Property Act, 1925, and the beneficial ownership converted into an equitable interest

[s. 1(3), ibid.]. And the paragraphs may be read where the context to admits as referring to the incidents, both at law and in equity, in regard to all titles existing before 1926, and to equitable interests only after 1st January, 1926.

When an estate is granted to two or more persons without any modifying and disjunctive words, they take, according to the common law rule, as joint-tenants. For example, if an estate be granted to A. and B. for their lives, they become joint-tenants of the freehold; if to A. and B. and their heirs, they are then joint-tenants of the fee. While equity recognises this rule, yet it has laid down many exceptions to it, amongst the most important of which are the following:

(1) If two join in lending money on mortgage, though they take a joint security, yet equity holds that it could never have been intended that their interests should survive, the fair presumption being that each means to lend his own money, and to be repaid his own again. The consequence is, that on the death of one the survivor who holds the entire legal estate by survivorship is deemed by equity a trustee for the personal representatives of the deceased co-mortgagee until the money be repaid. Equity then treats the two mortgagees as tenants in common. Where a mortgage is made to trustees who did not appear in that character on the face of the deed (lest the title be in cumbered with notice of their trust), it was usual to insert a clause, called a joint account clause, providing against the application of this rule of equity; see now (English) L.P. Act, 1925, s. 111, reproducing (English) Con-veyancing Act, 1881, s. 61.

(2) When two persons purchase an estate, and advance the purchase-money between them in unequal portions, equity treats them as tenants in common, notwithstanding the transfer be made to them generally, but the inequality must appear on the face of the conveyance. If, however, the consideration-money be paid by them in equal portions, and the transfer is general, then equity has not any ground to infer that this was not a joint purchase of the chance of survivorship, and they must be deemed, even inequity, as joint-tenants. Should one expend money in the repair and improvement of the estate, he will have a claim or lien on the estate for the amount of such money.

(3) When partners in trade purchase property for the partnership concern, equity treats them as tenants in common, holding the survivor to be trustee of the legal estate for the personal representatives of the deceased partner as to his share. Wares, merchandise, and stock in trade belonging to partners, survive to the representatives of the deceased partner. The lex mercatoria excludes the jus accrescendi for the benefit of commerce, which is pro bono publico, the maxim being jus accrescendi inter mercatores locum non habet.

A joint-tenancy, if created by the convention of parties, must arise out of the same deed, will, or claim, for there must exist a unity of title between them which must be by purchase and not by mere operation of law, and the estate must vest in them at one and the same time; for a joint-tenancy must subsist ab initio; an estate cannot become a joint-tenancy by the happening of any circumstances ex post facto. Upon the vesting of land in new trustees the estate vests anew in the new and continuing trustees. There is no accession to an old title. The same interest must be given to the parties, for one joint-tenant cannot have one estate in the property as for life, and the other as for years; and they must hold it by the same undivided possession, for each has an undivided moiety of the whole, and not the whole of an undivided moiety, though since the (English) Real Property Limitation Act, 1833 (3 & 4 Wm. 4, c. 27), s. 12, the possession of one joint-tenant is no longer to be deemed the possession of the other or others.

Joint-tenants being seised per my et per tout, or, as Coke says, totum conjunctim et nihil per se separatim, enjoy a survivorship (jus accrescendi) which is held to be as good as a right by descent, the title of the survivor being paramount. It is a continuation of the estate by the survivorship of the tenants, the estate passing among the joint-owners without any perceptible degree of transition but the diminution of the number of persons to enjoy it. The last survivor now takes the whole (equitable interest) as if the estate had originally been given to him only (see (English) Law of Property (Amendment) Act, 1926, Sched., amending s. 36 of the (English) L.P. Act,1925, and see (English) Administration of Estates Act, 1925, s. 159, sub-s. (4), unless, before 1926, any of his companions have conveyed away his own share in his lifetime, which, of course, each can do; so a partial alienation is a severance pro tanto, for alienatio rei pr'fertur juri accrescendi.

The right of survivorship is necessarily reciprocal; for otherwise there would be different degrees of interest in the same estate, which is inconsistent with the nature of joint-tenancy. A body corporate, therefore, whose existence has no natural termina-tion, cannot at Common Law the joint-tenant with a natural person; and as survivorship is necessarily included in joint-tenancy, two corporations cannot be joint-tenants together; for both being considered by the law of perpetual duration, it is impossible for one to survive the other. with regard to stock transferable at the Bank of England or Ireland, this law is altered by s. 6 of the (English) National Debt (Stock-holders Relief) Act, 1892 (55 & 56 Vict. c. 39), passed inconsequence of Law Guarantee and Trust Society v. Bank of England, (1890) 24 QBD 406, which provides that such stock 'may be transferred to and held in the names of an individual and a body corporate, or of two or more bodies corporate, and any such holding shall in its relation to the bank be deemed a joint-tenancy'; and, finally, the (English) Bodies Corporate (Joint Tenancy) Act, 1899 (62 & 63 Vict. c.20), has abrogated the common law rule entirely by the provision that 'a body corporate shall be capable of acquiring and holding any real or personal property in the same manner as if it were an individual.'

The freehold in joint-tenants was so entire that they could not grant, nor bargain and sell, nor surrender or devise to each other, much less exchange with or enfeoff one another; the proper mode of assurance from one joint-tenant to another was, and as to equitable interests still is, a deed of release, and the fee passed in such a case without the word 'heirs.' No right of dower or courtesy attaches to this estate, for the jus accescendi is preferred to all charges and incumbrances which do not amount to at least a partial alienation of the share by a lease for life; and a devise by a joint-tenant, during the existence of the joint-tenancy, is void. The maxim is, jus accrescendi pr'fertur ultim' voluntati necnon oneribus. By the Wills Act, 1837, a general devise passes after-acquired property; lands, acquired jure accrescendi, will consequently pass.

A curious question some times arose as to what is the law in case it cannot be proved which of two or more joint-tenants is the survivor, Wing v. Angrave, (1860) 8 HLC 183; see now (English) L.P. Act, 1925, s. 184, and COMMORIENTES.

By s. 36 (1) of the (English) L.P. Act,1925, where a legal estate (not being settled land) is beneficially limited or held in trust for any persons as joint-tenants, the same shall be held on trust for sale in like manner as if the persons beneficially entitled were tenants in common but not so as to sever the joint-tenancy in equity. By sub-sec. 2, severance of a joint-tenancy of a legal estate so as to create a ten-ancy in common in land shall not be permissible, whether by operation of law or otherwise, but the right of a joint-tenant to release his interest to the other joint-tenants is not affected, nor is the right to sever a joint-tenancy in an equitable interest. See (English) Law of Property (Entailed Interests) Act, 1932 (22 & 23 Geo. 5, c. 27), and UNDIVIDED SHARES; INFANT; ENTIRETIES.

The severance and destruction of this estate may be effected in several ways, as--

(1) By a voluntary deed of partition among the tenants agreeing to hold the property in severalty, for this is a disunion of their possession, and they have then but a separate interest in the several parts of the land, and the jus accrescendi is gone.

(2) By alienation without partition, as by one joint-tenant either releasing his share to the other, or conveying it away to a third person, for this is a destruction of the unity of title. A covenant to sell by a joint-tenant severs the estate in mere equity, provided it can be specifically performed, but not at law.

(3) By accession of interest, either by one joint-tenant purchasing the interest of the others, or by his acquiring the whole estate by survivorship, whereby the unity of interest is dissolved.

(4) By notice under (English) L.P. Act, 1936, s. 36, sub-s. (2), or by conveyance, s. 72 (ibid.).

(5) After 1925, by a partition under s. 29 (3), of the (English) L.P. Act, 1925. Before 1925, by a partition of sale under the Partition Acts, now repealed. See PARTITION.

(6) Limitation of action under 3 & 4 Wm. 4, c. 27, s. 12, a joint-tenant in possession to the exclusion of the other or others may obtain a title under the Statute against the other or others. The entry of the one joint-tenant apparently does not vest the possession of another joint-tenant; see Carson's Real Property Statutes (notes to s. 12, supra).

Joint tenancy means that each one of the tenants has unity of title in respect of the entire property and it is for this reason that notice to one joint tenant is sufficient to germinate the entire tenancy, Ramesh Chand Bose v. Gopeshwar Pd. Sharma, AIR 1977 All 38.