Maxine Charles & Anor v Andre Solomon & Ors

A division of rental income does not, by itself, sever a joint tenancy in the underlying property. The court must consider why the rent was divided and whether the dealings show that the co-owners treated their interests as tenancies in common. Evidence that a share of the property was intended to belong to a co-owner’s family after death may demonstrate that the parties no longer intended survivorship, and may establish severance. An appellate court should not interfere with factual findings unless there is an identifiable error or the decision cannot reasonably be explained or justified.

The appellants appealed from a decision of His Honour Judge Saunders concerning 125 King’s Avenue. The judge held that the beneficial joint tenancy had been severed by a course of dealing and ordered an account of rents received from 1984 onwards.

The appeal was lodged late because of filing mistakes and court-office errors. The court extended time and heard permission and the appeal together. The central issues were whether the dealings concerning rental income severed the joint tenancy and whether the appellants were relieved from accounting for historic rent.

1. Extension of time. The court extended time for filing the appeal to 18 June 2024. An attempt had been made to appeal within time, the subsequent delay was partly attributable to court-office errors, and the respondents suffered no relevant prejudice. It was disproportionate and unjust to deprive the appellants of the opportunity to seek permission.
2. Severance. The court accepted that the judge had adopted an over-broad approach in treating an intention to share rent as sufficient, by itself, to sever the underlying joint tenancy. Equal sharing of income is consistent with either form of ownership. It may sever the parties’ joint interest in income without severing their joint interest in the capital.
3. The court nevertheless upheld the result. The relevant question was why the rent was divided and whether the dealings proceeded on the assumption that the owners were tenants in common of the property. The findings that the property was treated as divided between the two family branches, that rent representing Philma’s share was paid to her and continued after her death, and that Maxine described the payments as representing an interest in the property showed that survivorship was no longer intended. Those findings established a course of dealing sufficient to effect severance.
4. Account. Rent received by one co-owner belonged beneficially to all the owners. The recipient owed a fiduciary duty to account, subject to possible defences such as accounting having occurred or the account having been waived by agreement. The trial judge rejected the evidence relied on to establish either defence, and his conclusion that no informal arrangement relieved the appellants from accounting since 1984 could reasonably be explained and justified.
5. The court treated the attempt to rely on documents and re-argue factual inferences as an impermissible appeal on the facts. Permission to appeal was refused and the appeal dismissed. The post-judgment note stated that permission should instead have been granted on Ground 1 because the real-prospect threshold was met, but the appeal remained dismissed on its merits.

• High Court (Chancery Division): Appeal from the decision of His Honour Judge Saunders. Time was extended, permission was refused, and the appeal was dismissed.