Joint Tenancy-severance

Joint Tenancy-severance

A joint tenant may sever a joint tenancy with or without the consent or knowledge of the other joint tenant. This may shock many of us who own real property as Joint Tenants. Be aware that this can happen without the knowledge of one of the Joint Tenant.

Whenever a Joint Tenancy is severed, it de-facto gets converted into Tenancy in Common. The right to survivorship gets extinguished automatically. The new nomenclature of the owners gets converted from Joint Tenants to Tenants in Common and each such Tenant in Common owns a distinct share rather than an undivided interest in the whole.

It is well established in the industry and is a common law that severance of Joint Tenancy can be severed in the following manner:

By one person acting unilaterally upon his or her own shares, so as to destroy the four unities:
unity of interest (each joint tenant must have an equal interest including equality of duration and extent), unity of title (the interests must arise from the same document), unity of possession (each joint tenant must have an equal right to occupy the entire property) and unity of time: the interests of the joint tenants must arise at the same time. (i.e. by transferring his or her interest to his or herself);

By mutual agreement, such as a written contract;
By conduct which demonstrates both tenants mutually dealt with their interests as several. This has been elucidated in case laws:

The court has considered parties intent to treat their interest in property as constituting a Tenancy in Common.

Communication of the conduct of the Joint tenants also plays a crucial role here. It could be that conduct of Joint Tenants where they display the common intention to no longer treat their respective shares in the property as an indivisible, unified whole. An example could be, a couple negotiating a separation even though the such discussions may not have concluded. Such negotiations involve separate shares in the property and the notion of Unity of Ownership under a joint tenancy is presumed to have been abandoned.


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