Quigley v Masterson

A beneficial joint tenancy may be severed by an unambiguous written notice showing a present desire to sever. The notice is unilateral and takes effect when properly given; the recipient’s agreement is unnecessary. A proposed deputy’s personal conduct before appointment cannot be attributed to a mentally incapacitated owner. Appointment as deputy does not automatically adopt that conduct, and silence or inactivity is insufficient where the deputy must make a fresh decision in the owner’s best interests. A Court of Protection application may nevertheless constitute a notice of severance if, read in context, it clearly seeks sale and division of the proceeds. It may be given to a person authorised in principle to receive notices on the owner’s behalf, even if formal security requirements remain outstanding.

Mr Edward Pilkington and Mrs Violet Masterson held a dwelling house as beneficial joint tenants. Earlier attempted notices of severance were ineffective. During Court of Protection proceedings concerning Mr Pilkington’s incapacity and the proposed sale of the house, Mrs Masterson stated that each co-owner had a 50 per cent share and applied for authority to market and sell the property, with the proceeds divided accordingly.

Mr Pilkington died before the sale. The Deputy Adjudicator held that the joint tenancy had not been severed by mutual conduct. Mrs Quigley, Mr Pilkington’s deputy and executrix, appealed. The central issues were whether her conduct could establish severance and whether Mrs Masterson’s Court of Protection documents amounted to a notice under section 36(2) of the Law of Property Act 1925.

1. Appeal allowed. The Deputy Adjudicator was correct on the arguments advanced below, but the joint tenancy had nevertheless been severed by an alternative route.
2. Severance by mutual conduct requires a consensus disclosed by a pattern of dealings with the co-owned property which unambiguously excludes the future operation of survivorship. Mrs Quigley’s statements and conduct before her appointment could not be attributed to Mr Pilkington, who lacked capacity and for whom she had no authority to act.
3. Appointment as deputy did not retrospectively authorise or automatically adopt Mrs Quigley’s earlier personal views. Under sections 1(5) and 4 of the Mental Capacity Act 2005, she had to consider the matter afresh and decide how the proceeds should be dealt with in Mr Pilkington’s best interests. Her silence during the short period before his death therefore did not establish the necessary common intention.
4. Mrs Masterson’s application of 5 January 2009, read with her earlier statements accepting equal ownership, clearly sought a sale and equal division of the proceeds. It therefore constituted a present, unconditional and unambiguous notice of desire to sever under section 36(2) of the Law of Property Act 1925. The notice was unilateral and did not depend on agreement by Mr Pilkington.
5. The application was not served on Mr Pilkington in a manner prescribed by section 196 of the 1925 Act. However, after the order of 3 February 2009, Mrs Quigley had sufficient authority in principle to receive a notice on his behalf. Her knowledge of the application, which had not been withdrawn or modified, meant that it could be treated as given to Mr Pilkington from that date. The outstanding security requirement did not prevent receipt of a notice which required no active exercise of deputy functions.
6. Alternatively, Mrs Masterson’s witness statement of 19 September 2008, stating that each party owned a 50 per cent share, could itself constitute a notice of severance.

The appeal was from the decision dated 22 July 2010 of Mr Simon Brilliant, sitting as a Deputy Adjudicator to HM Land Registry. The High Court allowed the appeal on the basis that severance had occurred through Mrs Masterson’s Court of Protection application, alternatively her witness statement.