Joint Tenancy vs Tenancy in Common

Almost every co-ownership problem in an Irish land paper is really one question wearing different clothes: what happens when one of the co-owners dies? Answer that and the rest — the unities, the presumptions, severance, partition — falls into place as the machinery that gets you there. Two forms of co-ownership survive in modern practice, the joint tenancy and the tenancy in common; coparcenary and tenancy by entireties are effectively obsolete and are not worth exam time.

Survivorship — the cardinal distinction

The operative feature of a joint tenancy is the right of survivorship, ius accrescendi. Joint tenants are not treated as holding separate shares at all: as against the world they hold as one owner. When a joint tenant dies, that interest does not fall into the deceased's estate — it accrues to the surviving joint tenants by operation of law. The practical consequence, and the point examiners test most often, is that a joint tenant's purported gift of the interest by will is simply ineffective. Survivorship outruns the will.

A tenancy in common works the opposite way. Each co-owner has a distinct undivided share which is freely disposable during life and devolves on death under the will or the rules of intestacy. The shares need not be equal, and they are inheritable.

Where joint tenants die in circumstances that make the order of death uncertain, the commorientes difficulty is addressed by section 5 of the Succession Act 1965: they are deemed to have died simultaneously, and under s. 5(2) — added by the Civil Law (Miscellaneous Provisions) Act 2008 — joint tenants who die, or are deemed to die, simultaneously are deemed to have held the property immediately before their deaths as tenants in common in equal shares, so each share falls into that co-owner's own estate (s. 5(3)). A related modern tidying-up: section 32 of the Land and Conveyancing Law Reform Act 2009 confirms that a body corporate may hold in a joint tenancy, replacing the Bodies Corporate (Joint Tenancy) Act 1899.

The four unities

A joint tenancy exists only if all four unities are present:

• Possession — each co-owner is entitled to possession of the whole of the land and cannot exclude the other from any part of it. This is the unity common to both forms of co-ownership, illustrated in Lahiffe v Hecker [1994] IEHC 2 Binding (IE).
• Interest — each holds an interest identical in extent, nature and duration.
• Title — all derive their title from the same instrument or act.
• Time — all the interests vest at the same moment, save where they are created under a will or a trust.

Miss any unity other than possession and there is no joint tenancy: what remains is a tenancy in common. That is why the unities are worth running mechanically rather than assuming a joint tenancy because the deed names two people. Conversely, do not over-read unity of possession — because it is present in a tenancy in common too, it proves nothing on its own.

The presumptions — and why equity leans against a joint tenancy

At common law, if the four unities are present and the instrument contains no words of severance, a joint tenancy is presumed. The presumption is displaced in two ways.

Words of severance

Words indicating that the co-owners are to take distinct shares — "equally", "in equal shares", "between", "respectively" — point to a tenancy in common. Kennedy v Ryan [1938] IR 320 Binding (IE) turned on precisely this: the effect of the conveyance and the presence or absence of words of severance in determining which form of co-ownership the parties held.

Equity's leaning

Equity dislikes the arbitrariness of survivorship, because it can strip a co-owner's family of value the co-owner actually paid for. So equity leans against a joint tenancy, presuming a tenancy in common, in three classic situations: where the purchase money was provided in unequal amounts; where the property is partnership or joint-enterprise property; and where co-lenders have advanced money on mortgage. The Irish authority to cite for the first of these is O'Connell v Harrison [1927] IR 330 Binding (IE), where the Supreme Court held that the presumption of a joint tenancy may be rebutted and that unequal contributions raise the presumption of a tenancy in common.

Severance — turning a joint tenancy into a tenancy in common

Severance destroys the right of survivorship for the future, converting the joint tenancy into a tenancy in common in equal shares. Historically there were three routes: an act of a joint tenant operating on their own share, most obviously voluntary alienation, which destroys a unity; mutual agreement between the joint tenants; and a course of dealing showing an intention to hold in common.

Two Irish authorities carry the point. Flynn v Flynn [1930] IR 337 Binding (IE) is the mutual-agreement and course-of-dealing case: a joint tenancy between a husband and wife was severed where their dealings showed they had agreed to hold in common. O'Malley v Breen [2021] IECA 148 Binding (IE) confirms severance by voluntary alienation by a joint tenant of their own interest, including by a re-mortgage.

What section 30 of the 2009 Act changed

The modern statutory position is the part students most often miss. Section 30 of the LCLRA 2009 gates unilateral severance: a joint tenant's conveyance, or acquisition of another interest, now requires the prior written consent of the other joint tenant or tenants, and an attempt without that consent is void (section 30(1)–(2)). The court may dispense with consent under section 31(2)(e). Section 30(3) provides that a judgment mortgage no longer severs a joint tenancy. Section 30(4) preserves the older severance by mutual agreement or by conduct — so Flynn v Flynn is still live law, while the unilateral route of O'Malley v Breen is now subject to the consent requirement for post-2009 dealings.

Ending the co-ownership: partition and sale

When co-owners fall out, the exit is partition — physical division of the land — or sale with division of the proceeds. Before 2009 this ran on the Partition Acts 1868 and 1876, and there was a real gap: in Irwin v Deasy [2006] IEHC 25; [2011] 2 IR 752 Binding (IE) Laffoy J held that under the pre-2009 statute law there was no right to a sale in lieu of partition in respect of registered land. First National Building Society v Ring [1992] 1 IR 375 Binding (IE) illustrates how the court exercises its discretion in ordering partition or sale, weighing the parties' respective interests.

Section 31 of the LCLRA 2009 replaced the Partition Acts and cured the registered-land gap. Any person with a legal or equitable interest in co-owned land may now apply for partition, for sale and distribution of the proceeds, for an account of incumbrances, for accounting adjustments between the co-owners (occupation rent, contributions to repairs and outgoings), for dispensation with consent to severance, or for such other order as is just and equitable. Section 31(6) abolishes the old equitable partition jurisdiction. The accounting adjustments are easy marks and frequently overlooked.

Related Land Law notes: adverse possession · easements · all free Land Law notes.