Adam Baker Law 2270 and 3270
Land Law 2018-2019
THE FAMILY HOME: DISPUTES OVER SALE
Essential reading
Any of:
B. Bagusz and R. Sexton (2017) – pp. 167–169, 175–181, 207–220,
239–241, 264–279, 282–285, 673–717
Bevan (2018) – pp. 160-166, 170-173, 187-190, 193-199, 205-210,
500-509, 534-549
McFarlane, Hopkins and Nield (2018) – ch. 13 (parts 1, 2 and 5); ch.
14 (parts 1, 2 and 4); ch. 25 (parts 1–4); ch 26 (parts 1-3)
Smith (2017) – pp. 332–350, 576–582 and 603–624
Plus both:
S.M. Cretney, ‘Women and Children last?’ (1991) 107 L.Q.R. 177
S. Greer, ‘Horsham Properties Group Ltd v Clark: Possession –
Mortgagee's Right or Discretionary Remedy?’ [2009] Conv. 516
Supplementary reading
D. Cowan, L. Fox O’Mahony and N. Cobb, Great Debates in Property Law
(2016), pp. 49–63 and 201–221
A. Dunn, ‘No tempering of the Wind for the shorn Lamb’ [1999] Conv.
263
S. Nield and N. Hopkins, ‘Human Rights and Mortgage Repossession:
beyond Property Law using Article 8’ (2013) 33 L.S. 431
M. Dixon, ‘Trusts of Land, Bankruptcy and Human Rights’ [2005] 69 Conv.
161.
M.P. Thompson, ‘Possession Actions and Human Rights’ [2011] Conv.
421, (pp. 439–440 only)
!1
, Insolvency Law Review Committee, Insolvency Law and Practice the
‘Cork Report’) (1982, Cmnd 8558), pp. 255–258 (on the VLE)
1. GENERAL INTRODUCTION
1.1 The issues in this topic
This topic is about how the courts resolve disputes about whether or not the family
home should be sold, in three particular contexts:
i. A home is co-owned at equity by two persons, one of them pushing for a sale
and one of them being opposed to it (Section 2).
Part (a) of any problem question on this topic will concern this
scenario. This part is not relevant to essay questions.
ii. A sale of the family home, whether owned entirely by one partner or co-owned
by both of them, is being sought by a legal secured creditor (Section 3).
This is the first essay area for this topic. It is not relevant for problem
questions on this topic (though one will need to have a general
understanding what a mortgage/charge is in order to fully
understand land law generally, and topic 7 especially).
iii. A homeowner (whether the absolute owner or an equitable co-owner) has
been declared bankrupt, and their ‘trustee in bankruptcy’ is seeking a sale of
the home on behalf of their creditors (Section 4).
This is the second essay area for this topic. It is also part (b) of any
problem question on this topic.
For an example of a problem question on this topic, see p 19 of this handout. For
points to think about in essay questions, see p 20.
!2
, 2. CO-OWNER DISPUTES OVER SALE
2.1 Introduction
It is not uncommon for equitable co-owners to disagree over whether or not (or
when) their home should be sold, in the event that their relationship breaks down.
We will first deal with the preliminary issue of severance (Section 2.2); then consider
how such disputes over sale may be resolved by the courts (Section 2.3); and finally
give a brief overview of how the proceeds of any sale should be distributed (Section
2.4).
2.2 Severance
2.2.1 Context
In the event that the disputing co-owners are joint tenants of the home at equity,
they are well-advised to consider severance in the period before the dispute is
resolved. Severance converts a joint tenancy of an estate into a tenancy in
common of it. 1 While there remains a joint tenancy, ‘survivorship’ applies; and so
if a joint tenant dies while the dispute is ongoing, their fellow co-owner(s) would
benefit. This result is very unlikely to have been wanted.
2.2.2 Methods of severance
There are numerous ways by which severance can occur. In practice, the most
important one is severance by written notice to the other joint tenant(s) (s 36(2) LPA
1925). No particular form of words is required, and no signature is necessary: Re
Draper's Conveyance [1969] 1 Ch. 486, 492. Delivery of such a notice may be made
to the last known address of the recipient, and is complete on delivery: Re 88
Berkeley Road [1971] 1 Ch. 648; and Kinch v Bullard [1998] All E.R. 650.
The common law methods of severance in Williams v Hensman [1861] 1 John & H.
546 may also still be used in the alternative (as is indicted by s 36(2) LPA). These
1 Severance can only take place in respect of a co-owned equitable estate, as co-ownership of a legal estate
must take the form of a joint tenancy (s 36(2) LPA 1925).
!3
Land Law 2018-2019
THE FAMILY HOME: DISPUTES OVER SALE
Essential reading
Any of:
B. Bagusz and R. Sexton (2017) – pp. 167–169, 175–181, 207–220,
239–241, 264–279, 282–285, 673–717
Bevan (2018) – pp. 160-166, 170-173, 187-190, 193-199, 205-210,
500-509, 534-549
McFarlane, Hopkins and Nield (2018) – ch. 13 (parts 1, 2 and 5); ch.
14 (parts 1, 2 and 4); ch. 25 (parts 1–4); ch 26 (parts 1-3)
Smith (2017) – pp. 332–350, 576–582 and 603–624
Plus both:
S.M. Cretney, ‘Women and Children last?’ (1991) 107 L.Q.R. 177
S. Greer, ‘Horsham Properties Group Ltd v Clark: Possession –
Mortgagee's Right or Discretionary Remedy?’ [2009] Conv. 516
Supplementary reading
D. Cowan, L. Fox O’Mahony and N. Cobb, Great Debates in Property Law
(2016), pp. 49–63 and 201–221
A. Dunn, ‘No tempering of the Wind for the shorn Lamb’ [1999] Conv.
263
S. Nield and N. Hopkins, ‘Human Rights and Mortgage Repossession:
beyond Property Law using Article 8’ (2013) 33 L.S. 431
M. Dixon, ‘Trusts of Land, Bankruptcy and Human Rights’ [2005] 69 Conv.
161.
M.P. Thompson, ‘Possession Actions and Human Rights’ [2011] Conv.
421, (pp. 439–440 only)
!1
, Insolvency Law Review Committee, Insolvency Law and Practice the
‘Cork Report’) (1982, Cmnd 8558), pp. 255–258 (on the VLE)
1. GENERAL INTRODUCTION
1.1 The issues in this topic
This topic is about how the courts resolve disputes about whether or not the family
home should be sold, in three particular contexts:
i. A home is co-owned at equity by two persons, one of them pushing for a sale
and one of them being opposed to it (Section 2).
Part (a) of any problem question on this topic will concern this
scenario. This part is not relevant to essay questions.
ii. A sale of the family home, whether owned entirely by one partner or co-owned
by both of them, is being sought by a legal secured creditor (Section 3).
This is the first essay area for this topic. It is not relevant for problem
questions on this topic (though one will need to have a general
understanding what a mortgage/charge is in order to fully
understand land law generally, and topic 7 especially).
iii. A homeowner (whether the absolute owner or an equitable co-owner) has
been declared bankrupt, and their ‘trustee in bankruptcy’ is seeking a sale of
the home on behalf of their creditors (Section 4).
This is the second essay area for this topic. It is also part (b) of any
problem question on this topic.
For an example of a problem question on this topic, see p 19 of this handout. For
points to think about in essay questions, see p 20.
!2
, 2. CO-OWNER DISPUTES OVER SALE
2.1 Introduction
It is not uncommon for equitable co-owners to disagree over whether or not (or
when) their home should be sold, in the event that their relationship breaks down.
We will first deal with the preliminary issue of severance (Section 2.2); then consider
how such disputes over sale may be resolved by the courts (Section 2.3); and finally
give a brief overview of how the proceeds of any sale should be distributed (Section
2.4).
2.2 Severance
2.2.1 Context
In the event that the disputing co-owners are joint tenants of the home at equity,
they are well-advised to consider severance in the period before the dispute is
resolved. Severance converts a joint tenancy of an estate into a tenancy in
common of it. 1 While there remains a joint tenancy, ‘survivorship’ applies; and so
if a joint tenant dies while the dispute is ongoing, their fellow co-owner(s) would
benefit. This result is very unlikely to have been wanted.
2.2.2 Methods of severance
There are numerous ways by which severance can occur. In practice, the most
important one is severance by written notice to the other joint tenant(s) (s 36(2) LPA
1925). No particular form of words is required, and no signature is necessary: Re
Draper's Conveyance [1969] 1 Ch. 486, 492. Delivery of such a notice may be made
to the last known address of the recipient, and is complete on delivery: Re 88
Berkeley Road [1971] 1 Ch. 648; and Kinch v Bullard [1998] All E.R. 650.
The common law methods of severance in Williams v Hensman [1861] 1 John & H.
546 may also still be used in the alternative (as is indicted by s 36(2) LPA). These
1 Severance can only take place in respect of a co-owned equitable estate, as co-ownership of a legal estate
must take the form of a joint tenancy (s 36(2) LPA 1925).
!3
