1 Land Law 1he dlsLlncLlon ln equlLy beLween Lhe [olnL Lenancy and Lhe Lenancy ln common ls enLlrely unnecessary.Lven Lhe Lralned lawyer may flnd lL dlfflculL Lo deduce whlch has been creaLed ln any parLlcular clrcumsLances, or wheLher whaL was orlglnally a [olnL Lenancy has been Lurned lnLo a Lenancy ln common.1hose wlLhouL legal Lralnlng do noL sLand a chance of undersLandlng Lhese maLLers-and yeL a fallure Lo undersLand Lhem can have drasLlc consequences." ulscuss. Co-ownershipoflandexistswheretwoormorepersonsaresimultaneouslypossessthe ownership rights in this parcel of land.Co-ownership can only exist by way of a trust, which creates a distinction between legal title (the formal paper title) and equitable interest (the title to the value).It splits the title into legal and equitable: the formal paper title, held in law by the trustees, and the title to the value, held in equity by the beneficiaries. English law used to know four different types of co-ownership, but the Law of Property Act1925hasreducedthisnumbertotwo:jointtenancyortenancyincommon.Thosetwo types of tenancy have in common two features.First, each co-owner is simultaneously entitled topossessionofalltheland:Asjointtenantseachhastherighttooccupyandneithercan lawfully exclude the other.1 Secondly, no co-owner is entitled to exclusive possession of any specificpart:Theyhaveneverhadanyexclusiverightofoccupationthemselves,towhich they could give effect2. The joint tenancy is characterised first by the fact that the transfer of land to them has made the co-owners,vis--vistheoutsideworld,onesingleowner,asLordBrowned-Wilkinson defineditinHammersmithandFulhamLBCvMonk[1992]3.Thereforenoco-ownercan claim a specific share of the land.From this is induced the right of survivorship: according to 1WisemanvSimpson[1988]1WLR35,42perRalphGibsonL.J.,casecitedinMarkP.Thompson,Modern Land Law (4th Edition, OUP, 2004), p. 279. 2 Meyer v Riddick (1990) 60 P. & CR. 50, 54 per Fox L.J., case cited in Thompson, ibid. 3 Hammersmith and Fulham LBC v Monk [1992] 1 AC 478, 492, cited in Thompson, ibid., p. 280. 2 section 184 of the Law of Property Act 1925, on the death of one owner, regardless of any will, the survivor(s) automatically continue to be entitled to the title.Secondly the joint tenancy is characterised by the four unities underlined in A.G.Securities v Vaughan [1990] per Fox L.J.4: possession, interest, title, time.Unity of possession has been defined above.Unity of interest means that the co-owners interests in land must be of the same nature, duration and time (so where for example an owner possesses a leasehold and the other a freehold, there cannot be a joint tenancy).Unity of title means the joint tenants must have become co-owners in the same document, and unity of time, at the same time. Tenancy in common is characterised by the fact that only unity of possession is required; and although no tenant has a right to any particular physical part of the land, they are entitled to a share in the land or its value: the Law of Property Act 1925 refers to the interests of the tenants asundividedshares.Accordingly,thereisnorightofsurvivorshipbetweenthetenantsin common: therefore on the death of a tenant, the others do not automatically acquire his share.The dead tenants share becomes the property of the person entitled under his will. As far as the legal title is concerned, it can only be held on a joint tenancy, according to the Law of Property Act 1925, s 1(6) and s 36(2); the only visible difference then is in equity: the equitable interest can be held either on a joint tenancy, or a tenancy in common, or both. Inequity,thereshouldbeanexpressdeclarationoftrustonthepurchasedeed:itshouldbe indicated who owns the equitable interests, whether they own them as joint tenants or tenants in common, if the tenancy is in common, in what proportions.Section 53(1)(b) of the Law of Property Act 1925 provides that a declaration of any trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will. However,asthedeclarationoftrustisnotcompulsory,itoftenhappensthatthetransferof 4 A.G.Securitiesv Vaughan [1990] 1 AC 417, 431, cited in Thompson, ibid., p. 280. 3 deeddoesnotincludeit.Inthatcase,therewillbeatenancyincommonifafewdifferent situations.First,ifoneofthethreeunitiesmentionedaboveasbeingpartofajointtenancy (interest,title,time)isabsent.Secondly,iftherearewordsofseverance,whichclearly establishsharesbetweenthetenants.Thirdly,wherethepurchasemoneyisprovidedin unequal shares.And fourthly where co-owners are business partners. Howeveratrustofbeneficialinterestmayariseevenwherenoprovisionwasmadeto determineit:section53(2)oftheLawofPropertyAct1925providesthattheformalitiesset out in subsection (1) of section 53 do not affect the creation or operation of resulting, implied or constructive trusts. Where there is no evidence that the person intended to advance a loan or make a gift, it was established in Dyer v Dyer (1788)5 that a resulting trust is presumed when a personbuysapieceoflandinthenameofanother;andwhereapersonreliedonanother persons promise that they would have an interest in the land, a constructive trust arises. At any rate, it is possible to transform a joint tenancy in equity into a tenancy in common at a later time by severing it.Section 36(2) of the Law of Property Act 1925 provides that the usualwaytoseveratenancyistodosoinwriting.Inaddition,WilliamsvHensman(1861) provided three other ways in which a joint tenancy may be severed.6 First an act of any one of thepersonsinterestedoperatingonhisownsharemaycreateaseveranceastothatshare.Secondlyajointtenancymaybeseveredbymutualagreement.Thirdlytheremaybea severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. Asthelegaltitlecanonlybeheldonajointtenancy,itisinequitythatthedifferences will arise and that choosing a joint tenancy or a tenancy in common will matter. 5 Dyer v Dyer (1788) 2 Cox Eq 92 6 Williams v Hensman (1861) 70 ER 862. 4 Thefirstobviousdifferencebetweenthetwotypesoftenanciesisthewaytheproceedsofa sale of the property will be divided.In a joint tenancy, although no shares can be identified in theownershipoftheproperty,theproceedsofthesalewillbedividedequallybetweenthe owners.However,inatenancyincommon,theproceedsaretobedividedproportionallyto howmuchthetenantshavecontributedtotheoriginalbuyingpriceoftheproperty.Inany case,ithasbeenheldinGoodmanvGallant[1986]7thattheexpressdeclarationoftrustis conclusive.Thedeclarationprevailsintheeventofasale,andsoevenifpurchasersofland contributeunequallybutdeclareajointtenancyoratenancyincommoninequalshares:the distribution of the proceeds will not be according to the amount actually contributed. Thenextdifferencebetweenthetenanciesisclearinthecaseofaseverance:whenajoint tenancy in equity is converted into a tenancy in common, the person who severed the tenancy getsashareproportionatenottothecontributiontheyoriginallymade(evenifthesharewas greater) but depending on the number of joint tenants. Whatmaybetheclearestdifferencebetweenajointtenancyandatenancyiscommonis whether the right of survivorship can operate or not.Where the persons are in a joint tenancy andoneoftheownerdies,accordingtosection184oftheLawofPropertyAct1925, regardless of any will, the right of survivorship, ius accrescendi, may operate in the case of a jointtenancyatlawandinequity.Thereforethesurvivor(s)automaticallycontinuetobe entitledtothetitle.Thewillofthedeadownerwillnotbeusedasregardshisshareinthe property,aseachco-ownerwasentitledtothewholeoftheproperty.Howeverwherethe persons are tenants in common, there is no right of survivorship between them; therefore on the death of a tenant, the others do not automatically get his share.The dead tenants share may be passed on by a will and so become the property of the person entitled under his will. Thejointtenancyappearstobealessflexibleversionofthetenancyincommonand 7 Goodman v Gallant [1986] 1 All ER 311. 5 capable of creating great financial risk for the tenants involved, whether they decide to sell the propertyortheydie.Inaddition,thedistinctionbetweenthetwotypesoftenancyobviously cannot be very clear to the layman who has not been helped by his solicitor.As Ward LJ said: ALWAYSTRYTOAGREEONANDTHENRECORDHOWTHEBENEFICIAL INTEREST IS TO BE HELD.It is not very difficult to do.8 8 Carlton v Goodman [2002] EWCA Civ 545, para.44.