RECO3037 Chap.9 Co-ownership, Survivorship and Severance
Co-ownership, Survivorship and Severance
Sharing the same land at the same time
Co-ownership exists whenever two or more people share an interest in land that each is entitled to possess at once, each entitled to occupy the whole. In Hong Kong it is everywhere: family homes, partnership premises, and every multi-storey building, whose flat owners are tenants in common of the whole development with an exclusive right to use their own units.
The two forms the course studies are the joint tenancy and the tenancy in common, and unlike in English law neither has to sit behind a trust for sale.
Joint tenancy, survivorship and the four unities
The decisive feature of a joint tenancy is survivorship: when one joint tenant dies, his interest passes to the others, whatever his will says.
A joint tenancy needs all four unities, of possession, interest, title and time; a tenancy in common needs only unity of possession, and each tenant in common has a distinct share that passes on death by will or intestacy.
Whether a grant creates one or the other depends on express words, then on words of severance such as in equal shares, and, for instruments since 1 November 1984, on section 9(1) of the Ordinance, which presumes a tenancy in common unless a joint tenancy is expressed.
Section 11(1) presumes that where deaths happen in an uncertain order, the younger survived the elder.
Severance, ouster and partition
A joint tenancy can be severed at law only by notice or by an instrument under section 8(1), and in equity by notice, by an act on a joint tenant's own share such as a transfer or bankruptcy, by mutual agreement, or by a course of dealing.
The chapter then covers the rights of a co-owner out of occupation, which depend largely on proving an ouster, as the Hong Kong decision in Cheung Lai Mui v Cheung Wai Shing confirms, and equitable accounting when the property is sold. It ends with partition, by deed if the co-owners agree, or by the court under the Partition Ordinance, which may divide the land, order a sale or refuse.
What this chapter covers
- 01
When co-ownership arises and where it is found
- 02
Joint tenancy and the right of survivorship
- 03
The four unities of possession, interest, title and time
- 04
Words of severance and the section 9 presumption
- 05
Simultaneous deaths and section 11
- 06
Severance at law and in equity under section 8
- 07
Ouster, occupation rent and equitable accounting
- 08
Partition and sale under the Partition Ordinance
Worked example · free
Joint tenants or tenants in common after a silent assignment
- 3Apply the section 9 presumption to the assignment.
- 2Explain the effect of Ka Yan's death on a tenancy in common.
- 2Fix the shares from the contributions.
Key terms
- Joint Tenancy
- Co-ownership in which the owners hold as one against the world and the right of survivorship applies.
- Tenancy in Common
- Co-ownership in distinct but undivided shares, with no right of survivorship, so each share passes on death by will or intestacy.
- Right of Survivorship
- The rule that on a joint tenant's death his interest passes to the surviving joint tenants, overriding his will.
- Four Unities
- Possession, interest, title and time, all of which must be present for a joint tenancy to exist.
- Words of Severance
- Words in a grant, such as in equal shares or share and share alike, that create a tenancy in common.
- Ouster
- A denial by one co-owner of another co-owner's right to possession, whether by physical or constructive exclusion.
- Partition
- The division of co-owned land between the co-owners, by deed on agreement or by order of the court.
Co-ownership, Survivorship and Severance FAQ
If two people buy a flat together, do they own it jointly?
Not automatically. For an instrument made since 1 November 1984, section 9(1) of the Conveyancing and Property Ordinance presumes a tenancy in common unless a joint tenancy is expressed. If the shares are not stated, equity treats them as equal unless the buyers contributed unequally to the cost, in which case the shares follow their contributions.
Can a joint tenant leave his share in a will?
Not while the joint tenancy lasts. The right of survivorship carries a deceased joint tenant's interest to the surviving joint tenants and is not displaced by a will or the intestacy rules. To make a share pass by will, the joint tenancy must first be severed, for example by a notice under section 8, a transfer of the share or a mutual agreement.
What happens if co-owners die together and nobody knows who died first?
Section 11(1) of the Ordinance presumes, for purposes affecting title, that the deaths occurred in order of seniority, so the younger is deemed to have survived the elder. For joint tenants that decides who takes the whole by survivorship. For tenants in common each share passes under its owner's will or intestacy, so the order matters only if one owner's will benefits the other.
Exam move
Memorise the order of the tests: four unities, express words, words of severance, then the section 9 presumption. Then practise one death problem twice, once as joint tenants and once as tenants in common, and write down exactly which step changed the result.
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