Joint ownership of property – Beneficial joint tenancy – Severance – Respondent separating from appellant’s father and vacating house co-owned with him – Appellant’s father later suffering from dementia – Court of Protection appointing appellant as his deputy and giving conduct of sale of house to respondent – Whether joint tenancy severed by conduct of parties in those proceedings or by notice of severance – Appeal allowed
The appellant’s father lived with the respondent for more than 20 years in a house of which both of them were registered joint proprietors and beneficial joint tenants. The respondent moved out in 2001 after the relationship ended.
The appellant’s father’s health deteriorated and he developed dementia, which, in 2008, caused him to move to a care home. The local council paid for his care until the house could be sold. Both the appellant and the respondent applied to the Court of Protection, which made an order appointing the appellant as her father’s deputy in relation to his property and affairs but gave conduct of the sale of the house to the respondent.
The appellant’s father died before the house could be sold. The appellant, who was the executrix under her father’s will, entered a restriction on the title of the house to the effect that the joint tenancy had been severed. The respondent maintained that there had been no severance and that she was entitled to be registered as the sole legal proprietor of the house by survivorship. The dispute was referred to a deputy adjudicator under section 73(3) of the Land Registration Act 2002.
The deputy adjudicator determined that no effective notice of severance had been served. He rejected the appellant’s alternative argument that severance had occurred through a common understanding of the parties, in the Court of Protection proceedings and thereafter, that each owned half a share in the house. He took the view that no course of dealing or common intention in favour of severance could be inferred from those proceedings since the appellant’s father lacked capacity and the appellant had no authority in law to speak or act on his behalf until her appointment as his deputy, which appointment could not convert what had been ineffective conduct into effective conduct. The appellant appealed.
Held: The appeal was allowed.
(1) A beneficial joint tenancy could be severed by any course of dealing showing that the parties mutually treated their interests as being those of a tenancy in common: Williams v Hensman (1861) 1 John & H 546 applied. The necessary mutual conduct, although falling short of evidencing an express or implied agreement to sever, had nevertheless to indicate an unambiguous common intention that the joint tenancy should be severed, as disclosed by a pattern of dealings with the co-owned property that excluded the operation of the right of survivorship.
The appellant’s words or actions before her appointment as her father’s deputy could not be attributed to her father since, at that time, she had no authority to act for him or speak on his behalf. The mere fact of her appointment could not, without more, lead to her previous words or actions being treated retrospectively as spoken or made on her father’s behalf. Moreover, following her appointment, the appellant’s statutory duty to make decisions in her father’s best interests would have required her to consider the matter afresh and decide, probably with the benefit of legal advice, how the proceeds of sale of the house should be dealt with. The views that she had previously expressed in her personal capacity could not be automatically attributed to her in her new capacity.
(2) However, respondent’s application to the Court of Protection severed the joint tenancy. That application, read in the context of earlier documents in the proceedings, made it clear that she wanted to sell the house so that the proceeds could be equally divided between herself and the appellant’s father and his share could then be used to pay for his long-term care. It was evidence that the respondent was treating the joint tenancy as severed and expecting the net proceeds of sale to be divided up between the co-owners. The application qualified as a notice of severance under section 36(2) of the Law of Property Act 1925 since, read in the context of the proceedings, it gave unambiguous notice of the respondent’s wish to sever the joint tenancy: Re Draper’s Conveyance (1968) 204 EG 693 applied. That notice could be regarded as having been “given” to the appellant’s father, so as to meet the requirements of section 36(2), when the court ordered the appointment of the appellant as her father’s deputy. From that point onward, she had sufficient authority to receive a notice of severance on her father’s behalf. Since she already knew about the respondent’s application, and the respondent had not withdrawn or modified it, the notice could be treated as having been “given” to her at that point.
Robert Sheridan (instructed by Hammons Solicitors, of Coventry) appeared for the appellant; Andrew Skelly (instructed by Drew Jones Solicitors, of Coventry) appeared for the respondent.
Sally Dobson, barrister
