Severing Joint Tenancy
Introduction
Severing a joint tenancy is a legal process that changes the property from a joint tenancy arrangement to a tenancy in common. This process is particularly relevant in a matrimonial context, where a change in the relationship status may necessitate a change in the property ownership structure. The following blog post will examine the reasons for severing a joint tenancy, the considerations to be made before taking this step and the methods to effect the severance.
Reasons to Sever a Joint Tenancy
Most married couples who jointly own their matrimonial home do so as joint tenants. However, when a marriage breaks down and parties separate, the joint tenancy often becomes a point of concern. Parties may wish to sever the joint tenancy to ensure that if one party dies before property issues are settled, the other party won't automatically become the sole owner. Thus, it becomes crucial for the legal counsel to discuss the differences between joint tenancy and tenancy in common with the client, to ascertain their desires and act accordingly.
Considerations Before Severing a Joint Tenancy
Severing a joint tenancy isn't a decision to be made lightly or impulsively. Several factors need to be considered before making this decision. These include the age and health of the parties and the length of the ongoing negotiations. Each of these factors can impact the decision and the timing of the severance. It's worth noting that there's no hard and fast rule about when to sever a joint tenancy. Some legal professionals may advise doing it as a standard practice while others may choose to approach it on a case-by-case basis.
Methods of Severing a Joint Tenancy
There are three primary ways to sever a joint tenancy. The first involves one party unilaterally acting on their share, such as selling or encumbering it. The second method is a mutual agreement between the co-owners to sever the joint tenancy. The third method hinges on any course of dealing sufficient to intimate that all parties' interests are mutually treated as constituting a tenancy in common. In certain scenarios, the commencement of separation negotiations or a court application may also serve to sever the tenancy.
Conclusion
Severing a joint tenancy is a significant step that can have profound implications on property rights and entitlements. Therefore, it's crucial to understand the reasons, considerations, and methods involved in the process. Furthermore, it's always advisable to seek professional legal advice to understand the potential implications fully and make an informed decision.
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