Severing a joint tenancy: a Queensland analysis

Abstract

In recent years, the higher courts in Queensland have had the opportunity to revisit the effect of severance on a joint tenancy. The cases allow for the opportunity to examine in more depth the nature of joint tenancy itself, and the concept of alienation as a means of severance of joint tenancy. This article provides an analysis of these decisions to ascertain the contemporary 'state of play' in the law applying to severance of a joint tenancy.

A joint tenancy is characterised by the four unities - of possession, interest, title and time! – together with the right of survivorship. Given this characterisation, severance of a joint tenancy represents a fundamental change in the nature of the co-ownership. In particular, the destruction of the right of survivorship through severance will by definition change the potential of each co-owner to hold the whole of the estate in severalty upon the death of the other co-owners. The nature of the common ownership of a joint tenancy, and the potential that it carries, can be adjusted by converting, or severing, the joint tenancy to create a tenancy in common. Unlike a joint tenancy, a tenancy in common is characterised by each tenant holding a distinct interest in the property; the shares may be in different proportions.