Severing a joint tenancy: a case update on Whitty v Talia

Severing a joint tenancy: a case update on Whitty v Talia

Severing a joint tenancy is a complex legal issue that often arises when one of the joint owners passes away. Whitty v Talia [2023] VSCA 246, a recent case in the Court of Appeal, offers a significant update on the intricacies of severing a joint tenancy. In this article, we will delve into the details of the case, explore the ways in which a joint tenancy can be severed, and highlight the significance of clear property arrangements.


Whitty v Talia [2023] VSCA 246: a case overview

The case of Whitty v Talia [2023] VSCA 246 delves into the complexities of severing a joint tenancy, offering a comprehensive look at the legal intricacies involved. In this case, a married couple jointly purchased a property in Fitzroy. The property’s financing was a combination of a bank loan, the sale of a property owned by the wife, and a loan from three of the husband’s siblings. It is essential to note that the wife was not a party to the loan agreement with the husband’s siblings.

To provide assurance to the siblings, the couple executed a deed between them. This deed allowed the husband to sell the property under specific conditions, with the wife having a right of first refusal. However, an unexpected and intestate death of the husband threw a wrench into the situation, leading to a legal battle over the ownership of the property. One of the husband’s siblings lodged a caveat, claiming that both the loan agreement and the deed severed the joint tenancy, transferring the right of sale to the husband’s estate.

The primary judge ruled in favour of severing the joint tenancy. Consequently, both the husband’s estate and the wife were declared entitled to equal undivided shares as tenants in common. Additionally, the right of sale was deemed to vest in the husband’s legal personal representative upon appointment, with both parties sharing the proceeds equally. The wife sought leave to appeal on the single ground that the judge erred drawing the inference that the husband an wife mutually intended that the husband would retain an interest in the property after his death, and that “‘objectively they mutually intended that they would hold the … property as tenants in common, rather than as joint tenants”.

The Court of Appeal granted leave to appeal but dismissed the appeal.


Legal principles governing joint tenancy

Statutory presumption

Section 33(4) of the Transfer of Land Act 1958 establishes a statutory presumption in favor of joint tenancy. It states that when two or more persons are named in any instrument as transferees, mortgagees, lessees, or as taking any estate or interest in land, they shall be deemed to be entitled jointly, unless the contrary is expressly stated. When such an instrument is registered, it shall take effect accordingly. This statutory presumption governs the legal ownership of the land.

Equitable considerations

While the statutory presumption favors joint ownership, it does not preclude the operation of equitable principles. Equity may come into play either at the time the property is initially acquired or at a later point when some intervening conduct or event effectively severing a joint tenancy.


Characteristics of a joint tenancy

Two principal characteristics define a joint tenancy:

1.The Four Unities: The first characteristic involves the four unities, which are essential elements of a joint tenancy. These four unities encompass:

    • Unity of possession: each owner has an equal entitlement to possess the land as every other owner.
    • Unity of interest: owners have interests that are identical in extent, interest, and duration. This means that they share the same rights and stakes in the property.
    • Unity of title: each owner derives their title from the same act or instrument. This unity underscores the shared origin of their ownership.
    • Unity of time: While less relevant in cases of severance, it implies that the interests of owners vested simultaneously.


2. Right of Survivorship: The second critical characteristic of a joint tenancy is the right of survivorship. This means that if one joint tenant passes away, their interest in the land is extinguished. Simultaneously, the interest of the surviving joint tenant or tenants is proportionally enlarged. In essence, the surviving joint tenant(s) absorb the deceased tenant’s share upon their death.

These legal principles provide the foundation for understanding and dealing with joint tenancies in property law. It is important to recognise that while statutory presumptions and unity principles exist, equitable considerations and intervening events can impact the nature of joint ownership, potentially leading to a shift from joint tenancy to tenancy in common.


Understanding the severance of joint tenancy

Severing a joint tenancy is a crucial legal concept that forms the core of the Whitty v Talia case. Severing a joint tenancy can occur in three primary ways:

  1. Act of one party: severing a joint tenancy can be initiated by any joint tenant. This involves taking actions that affect their share, though doing so relinquishes their right of survivorship.
  2. Mutual agreement: Joint tenants can come to a mutual agreement to sever the joint tenancy, effectively converting it into a tenancy in common. Such agreements must be clear and unequivocal.
  3. Course of dealing: Severing a joint tenancy can also occur through a course of dealing that implies the parties have treated their interests as tenancies in common. This may include actions, conduct, or arrangements that suggest a shift from joint tenancy to tenancy in common.


The three primary ways have been described by Page Wood V-C in William v Hensman:

“A joint-tenancy may be severed in three ways:

in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund — losing, of course, at the same time, his own right of survivorship.

Secondly, a joint-tenancy may be severed by mutual agreement.

And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested.”

In Whitty v Talia, the Court of Appeal focused on the third method, the course of dealing. They found that the intention to sever the joint tenancy was evident from the deed between the joint tenants. This deed provided for the repayment of the loan from the siblings upon the death of the deceased from the deceased’s share of the proceeds of sale and granted the survivor a right of first refusal.

This intention made sense only if the property did not solely vest in the wife through the right of survivorship upon her husband’s death. Therefore, the Court of Appeal held that a course of conduct, in this case, the deed, indicated a clear intention to sever the joint tenancy.


The significance of Whitty v Talia [2023] VSCA 246

The case of Whitty v Talia serves as a significant reminder of the complexities involved in severing a joint tenancy and the potential for disputes upon the death of a joint owner. It emphasises that the intention to sever a joint tenancy can be inferred from a course of dealing, even without an express act of severance. In this particular case, the deed between the joint tenants played a crucial role in demonstrating their intent to convert their joint tenancy into a tenancy in common.

Severing a joint tenancy is a complex legal issue with significant implications for property ownership. Whitty v Talia [2023] VSCA 246 provides valuable insights into the circumstances under which a joint tenancy can be severed, particularly focusing on the role of a course of dealing in indicating a shift from joint tenancy to tenancy in common.

This case highlights the importance of clarity in property arrangements and the need for legal advice to navigate such complex situations effectively. Whether you are a joint tenant or involved in property disputes, staying informed about these legal intricacies is essential to protect your interests.

For professional guidance and assistance in severing a joint tenancy, contact Haitch Conveyancing at (03) 8590 8370 . We are a team of experienced property lawyers who can help you understand the implications of all aspect of property transactions in Victoria. We are an online property law and conveyancing firm that can assist when buying or selling property.

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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