Pudner & Anor v Pudner

An express declaration in a conveyance that purchasers hold land as joint tenants in equity determines their beneficial ownership unless fraud or mistake is established.

A joint proprietorship restriction entered on first registration does not itself convert an equitable joint tenancy into a tenancy in common. Severance requires a subsequent agreement or effective notice under section 36 of the Law of Property Act 1925. A will containing no words of severance does not achieve that result. A proposed appeal based on unsupported severance arguments has no prospect of success.

Mrs Sarah Pudner conveyed a property to herself and her son, Ivor Pudner, with an express declaration that they would hold it as joint tenants in equity. On first registration, the solicitors selected the option indicating a tenancy in common, and a joint proprietorship restriction was entered.

The High Court held that the conveyance governed the beneficial ownership, found no fraud, mistake or severance, declared Ivor entitled to the property by survivorship, and ordered Reginald Pudner and Elizabeth Seaman personally to pay the relevant costs. Reginald sought permission to appeal out of time against the declaration and costs order. The central issues were whether the Land Registry entry or the wills had severed the joint tenancy and whether the costs order should stand.

1. Disposition. The application for permission to appeal was refused. The proposed appeal against both the beneficial ownership declaration and the costs order had no prospect of success, and the appeal was also out of time.
2. Beneficial ownership. The express declaration in clause 8 of the conveyance determined the parties’ beneficial interests. In the absence of fraud or mistake, such a signed declaration is conclusive. The court relied on Pettit v Pettit [1970] AC 777 and Goodman v Gallant [1986] Fam 106 (CA). The judge had found no fraud and no evidential basis for mistake or rectification.
3. Registration and severance. The solicitors’ selection of the tenancy-in-common option on Land Registry Form 1B, and the resulting joint proprietorship restriction, could not itself alter the underlying beneficial ownership. An equitable joint tenancy could be severed only by a subsequent agreement between the co-owners or by notice of severance under section 36 of the Law of Property Act 1925. The Form 1B entry was equally consistent with solicitors’ error, and the Land Registry note added nothing.
4. Wills. The identical wills made in 1987 and the later will made in 2002 contained no words of severance. The wills operated in the same practical way whether the parties were joint tenants or tenants in common. There was no evidence that the 2002 will had been disclosed to Ivor, and disclosure could not be assumed. The beneficial joint tenancy therefore remained intact and survivorship operated.
5. Costs. The judge was entitled to order Reginald and Elizabeth to bear personally the costs of asserting a tenancy in common contrary to the conveyance. Nothing showed that the beneficiaries, including some minors, had been consulted about contesting Ivor’s claim.

• Court of Appeal (Civil Division): refused the application for permission to appeal against the High Court’s declaration of beneficial ownership and personal costs order.
• High Court, Chancery Division: HHJ Weeks QC made an order on 27 September 2005 declaring Ivor Pudner entitled to the whole beneficial interest in the property by survivorship and ordering the defendants personally to pay the relevant costs. Permission to appeal was not granted.