Those Pesky Severance Questions
I had the pleasure recently of talking to a couple of undergraduate students about their land law course and, in particular, those seemingly endless problem questions that deal with severance.
You know the sort: seven or so people buy a house together and then a biblical amount of misfortune seems to befall them. One kills the other; another goes into bankruptcy; someone gets married and brings their wife to live with them.
Honestly even looking at one of these questions was enough to send shivers down my spine. I remember when I was a student and presenting on one such question was given to us as a group project. It is bad enough trying to work this nonsense out on your own without several other students throwing ideas around as well!
Nevertheless I think there is a trick to them and even with a short-ish word count it is possible to cover all your bases.
The introduction only needs to normally be a couple of paragraphs. The debate here is whether we are dealing with a joint tenancy or a tenancy in common. More often than not it will be a joint tenancy that will later be severed as a question progresses but you still need to justify your response by confirming the presence of the four unities:
Time
Title
Interest
Possession
Sometimes there might be things that point to a tenancy in common (such as unequal contributions to the purchase price) but that presumption can be overridden by an express intention to the contrary so don’t be fooled by your lecturer!
The rest of the question might be a number of long paragraphs but often these will just be a series of ways in which the joint tenancy might be severed. Your task, for each paragraph, is to see which method(s) of severance might apply:
Severance by notice in writing (s. 36(2) of the Law of Property Act 1925)
One of the methods listed in Williams v Hensman (1861):
A joint tenant acting upon their own share e.g. a mortgage, a disposition during life, bankruptcy etc.
mutual agreement between the joint tenants
mutual conduct
Court order
Homicide (Cleaver v Mutual Reserve Fund [1892]1)
Merger of interests
Identifying which one applies should be relatively simple but the students who get the top marks will be those who get into the academic debates that the question throws up: what if the intention to sever by written notice is not immediate? what happens after the mortgage is repaid in full? what if one joint tenant brings a case against another?
Often there won’t be a clear answer and that is deliberate on the part of the lecturer. They want to see you have the debate and if you manage that then you will get credit.
The conclusion to your essay will often be about working out who has what share and at the start that can seem daunting. However if you have come to a conclusion about all of the previous incidents in the question then it will be just a case of putting this all together so that it is bow-wrapped for your lecturer.
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In the podcast this week we had an interesting case where the US government was trying to extradite a Scottish man for allegedly making $97 by tweeting false information about companies. According to the Securities and Exchange Commission, those tweets cost investors £1.6 million.
The extradition was opposed because it should have been possible to try the man in Scotland but the Secretary of State had consistently refused to bring the relative law into force there despite it being applicable in England, Wales and Northern Ireland.
In the episode we discuss what is the prerogative of ministers and when the courts should be able to intervene.
Episode link: http://uklawweekly.com/2022-uksc-6/
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Marcus
No relation.