The parties were mother and son who had purchased a property as joint tenants. The son contributed a greater part of the purchase price. The son then married, and agreements were reached as to occupation of different parts of the house. When those arrangements fell through, the son sought possession of the house.
Held: Neither of joint tenants is entitled to exclude the other from occupation of the property held as joint tenants at law. However, the joint tenancy was created for a particular purpose, and an order for sale was refused where the effect would be to defeat that purpose. The parties had intended at the time the house was bought that the property would be tenants in common.
Denning LJ: ‘The son is, of course, the legal owner of the house, but the mother and son are, I think, equitable tenants in common. Each is entitled in equity to an undivided share in the house, the share of each being in prportion to his or her respective contribution. Each of them is entitled to the possession of the land and to the use and enjoyment of it in a proper manner. Neither can turn out the other; but, if one of them should take more than his proper share, the injured party can bring an action for an account. If one of them should go so far as to oust the other, he is guilty of trespass.
Since 1925 there has been no such thing as a legal tenancy in common. All tenancies in common now are equitable only and they take effect behind a trust for sale (s36(4) of the Settled Land Act 1925). Nevertheless, until a sale takes place, these equitable tenants in common have the same right to enjoy the land as legal tenants used to have.
My conclusion, therefore, is that when there are two equitable tenants in common, then, until the place is sold, each of them is entitled concurrently with the other to the possession of the land and to the use and enjoyment of it in a proper manner and that neither of them is entitled to turn out the other.’
Judges:
Devlin J, Denning LJ
Citations:
[1955] 1 QB 234
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Wilkinson v Chief Adjudication Officer CA 24-Mar-2000
The claimant owned a half share in a property. It was said that this brought her disposable capital above the limit to make a claim. She had inherited it, but had transferred it to her brother in satisfaction of her mother’s wishes. . .
Cited – Hammersmith and Fulham London Borough Council v Monk HL 5-Dec-1991
One tenant of two joint tenants of a house left and was granted a new tenancy on condition that the existing one of the house, still occupied by her former partner, was determined. She gave a notice to quit as requested, the council claimed . .
Lists of cited by and citing cases may be incomplete.
Land, Trusts
Updated: 23 March 2022; Ref: scu.207071
