Concurrent Interests

• Pages: 321-373

CONCURRENT INTERESTS

Interests in land can be concurrent. This can be contrasted with successive

interests under a settlement, that is, where a series of interests in land is

created for the benefit of more than one person appointed to take one after

the other. In the case of concurrent interests, two or more persons are

appointed to take not one after the other, but to take, hold and/or enjoy the

beneficial interests in a piece of land simultaneously. They thereby become

entitled in possession to an interest in the same piece of land in respect of

which they exercise rights of ownership as a single owner; a concurrent

and equal title to use and possession of the same piece of land is vested

in them. They are therefore co-owners, enjoying rights of ownership

concurrently.

There are four types of co-ownership, which are described as:

1. Joint tenancy

2. Tenancy in common

3. Tenancy by entireties

4. Coparcenary.

It should be noted at the outset that “tenancy” here does not refer to the

concept of “tenant” in the landlord–tenant relationship; it rather signifies

ownership. The last two “tenancy by entireties” and “coparcenary” are

virtually obsolete and will therefore not be considered. We shall discuss

the first two, “joint tenancy” and “tenancy in common”, in this chapter.

Joint tenancy is characterised by what are described as “the four uni-

ties” These are are: (1) possession; (2) interest; (3) title; and (4) time. The

four unities are required in joint tenancy. The essence of the four unities

lies in the fact that the joint tenants are considered as one with respect

to the estate of the joint tenancy. Unity of possession is the only one of

the four unities which is indispensable in tenancy in common. Unity

of possession is a necessary requirement of all types of co-ownership.

JOINT TENANCY

Under joint tenancy, every tenant is said to be “wholly entitled to the

whole” of the land. Each owns the whole property subject to the equal

interest of the others. That is, to all intents and purposes, each joint tenant

is in exactly the same position as any of the other joint tenants with respect

to the enjoyment of the land. According to Dixon J.,

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In contemplation of law, joint tenants arejointly seised for the whole estate

they take in land and not one of them has a distinct or separate title,

interest or possession.1

Thus

From the point of view of their interest in the land they are united in every

respect.2

They therefore constitute a single owner from the outside. But as between

themselves they have separate and equal rights. Ajoint tenant cannot lay

claim to any specific portion of the property as his own. For totum tenet

et nihil tenet, i.e., as Watkins J.A. stated in Paton v. Roulstone. “in beneficial

joint tenancy, each joint tenant holds nothing by himself but holds the

whole together with his fellows”.3

UNITY OF POSSESSION

There is unity of possession where a co-tenant is denied a divided interest

or separate share of the property. The interest should be in an undivided

whole. Aco-tenant has no right to a physically divided share of the

property. He cannot lay claim to any part of the land as exclusively belong-

ing to him. It appears, however, that since co-tenants cannot actually

occupy in common every part of the premises, a co-tenant may have the

right to the exclusive use and occupation of a portion of the property. For

example,

If they live together in the mansion house, still each has exclusive posses-

sion of his own bedroom. If the property be a farm, unless they are willing

to go into partnership, one must till certain fields and one, other fields. Two

men cannot plow the same furrow.4

The effects of the doctrine of unity of possession are:

(A) Immunity from action in trespass by a co-tenant out of

possession

Aco-tenant who is out of possession cannot bring an action in trespass

against a co-tenant who exclusively occupies the estate and receives rents

and profits for his exclusive use, unless there is a destruction of the estate5

1Wright v. Gibbons (1949) 78 C.L.R. 313, 315.

2Cheshire & Burn, op. cit., at p. 242.

3Panton v. Roulstone (1976) 24 W.I.R. 462, 465.

4Mastbaum v. Mastbaum 126 N.J. Eq. 366, 9 A.2d 51 N.J.Ch. 1939.

5Wilkinson v. Haygarth (1847) 12 Q.B. 837.

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or he has been positively evicted. Thus, in Jacobs v. Seward,6a co-tenant was

not held liable in trespass for cutting a crop of grass on the land which

was co-owned. Lord Hatherley L.C. remarked that it was “idle to talk of

trespass as a consequence of a man making hay upon his own field – for it

is his own – or a moiety of it at least, and no definite portion of it is mapped

out as his moiety”.7Aco-tenant who is in possession is not even obliged

to pay rent to a co-tenant who is out of possession.8For it is said that each

has a right to occupy the estate, and neither can exclude the other.9If the

exclusive possession could render him liable to pay rent, it would be open

to the other, by voluntarily remaining out of possession, to keep out his co-

tenant except upon condition of rent payment. Aco-tenant is not obliged to

make the property remain idle under penalty of paying rent to the other

co-tenants who choose to stay out of the property. Thus a co-tenant is

entitled to occupy exclusively where this does not injure his co-tenants or

cause loss of rents from prospective tenants. Aco-tenant cannot therefore

unilaterally decide to abandon the property and thereby “change his status

into that of a landlord over the remaining co-tenant in possession”.10

Exceptions

(I) Ouster or Eviction

If a co-tenant is evicted, he can maintain an action of ejectment against his

dispossessor.11 Aco-tenant cannot therefore eject the other co-tenant. In

Forbes v. Bonnick12 F and B lived together as man and wife. F contributed

£34 towards the purchase price of £125 and also contributed to the building

of the house which she and B built. B subsequently served F with notice

to quit the house which was built through their joint effort. The notice

expired and the magistrate ordered the appellant to quit. The Court of

Appeal, founding its decision on Bull v. Bull,13 set aside the order of the

magistrate. The Court of Appeal relied on the dictum of Lord Denning in

Bull v. Bull that

6(1872) L.R. 5 H.L. 464.

7(1872) L.R. 5 H.L. 464 at 473. The view of Lords Hatherley (at 474) and Westbury (at 478)

that there may have been a legitimate claim for an account for the profit made from the

harvesting of the hay (at 307) is suspect and does not appear to be consistent with the

principle that a co-tenant has the right to claim any profit he makes from his exertions.

8Jones v. Jones [1977] 1 W.L.R. 438. But in matrimonial cases, rent can be made payable. See

Bedson v. Bedson [1965] 2 Q.B. 666, Suttill v. Graham [1977] W.L.R. 819.

9In partition proceedings in Luke v. Luke (1936) 36 S.R. (N.S.W.) 310, 314, a co-tenant was

held not chargeable with occupation rent.

10 Seesholts v. Beers 270 So. 2d 434 at 437, per Walton J.

11 Dennis v. McDonald [1981] 1 W.L.R. 810.

12 (1968) 11 J.L.R. 67.

13 [1955] 1 Q.B. 234.

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