Quigley v Masterson  EWHC 2529 (Ch) is an interesting case involving loss of capacity and methods of severing a joint tenancy. Mr Pilkington and Mrs Masterson had cohabited for more than 20 years. They had bought a property together which was conveyed into their names as joint tenants both at law and in equity. In 2001 when the relationship ran into difficulties Masterson moved out.
Pilkington was significantly older than Masterson and, unsurprisingly, when he consulted solicitors they suggested severing the beneficial joint tenancy by serving notice of severance under section 36(2) of the Law of Property Act 1925. Section 199 of the act provides that any notice required to be served under the act shall be sufficiently served if it is either:Pilkington’s solicitors made two unsuccessful attempts to serve a notice. They sent a letter to a firm of solicitors which had acted for Masterson but had, by then, ceased to do so. This was, naturally, ineffective. They then sent a letter to her place of work. Masterson was employed at the time by the University of Warwick as a cleaner. The letter was addressed to her with her name misspelled as ‘Mrs Masterton’ at the ‘accommodation services’ at the university.
- left at the last-known place of abode or business in the UK of the person to be served; or
- sent by registered post to the person to be served at their place of abode or business.
There was no evidence that this notice had ever been posted, let alone received. In any event, the court was clear that her workplace as an employee of the university could not be treated as her ‘last-known place of business’ in the UK within the meaning of section 196.
Pilkington was suffering from dementia. In 2008 he had to move into residential care and there was therefore a need to sell the property to provide funds for his care. He had not granted an enduring or lasting power of attorney so a deputy was required. His daughter, Mrs Quigley, applied. On the application form, she wrote: ‘It is intended to sell the house which is owned jointly with former partner, who also wishes to sell.’
Masterson applied to be joined as a party to the proceedings. She opposed Quigley’s application in relation to the house on the grounds that there were ongoing disagreements between them, and she felt that Quigley would not dispose of the joint assets in a fair and reasonable manner.
Following a contested hearing, the court ordered that Masterson should have conduct of the sale of the house, subject to certain conditions, but that Quigley should be made the deputy for Pilkington’s property and affairs, with the exception of the sale of the house. Before any action could be taken to sell the house, Pilkington died.
The issue then was whether the joint tenancy had been severed. The failed notices had not done so. However, serving notice is not the only way to achieve severance.
According to Williams v Hensman  1 J & Hem 546, it is possible to sever a joint tenancy by:Quigley, as deputy, argued that the Court of Protection proceedings had constituted a course of dealing sufficient to sever the joint tenancy. For example:
- in her application to be joined as a party to the proceedings, Masterson said: ‘We each own a 50% share in [the house]’; and
- the Court of Protection wrote to Quigley’s solicitors asking if they accepted that Masterson owned 50% of the house. They replied in the affirmative.
- an act of any one of the persons interested acting upon his own share;
- mutual agreement; or
- a course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.
However, Henderson J raised with counsel the question whether Masterson’s own application to the Court of Protection could itself have been sufficient to sever the joint tenancy, by analogy with the decision of Plowman J in Re Draper’s Conveyance  1 Ch 486, where it was held that a severance had been effected by the service of a summons under section 17 of the Married Women’s Property Act 1882 and an affidavit in support, asking for an order that the former matrimonial home be sold and the proceeds of sale distributed in accordance with the parties’ respective interests therein. After hearing argument, he decided that it did. Read in the context of the proceedings, the application gave unambiguous notice of Masterson’s desire to sever the joint tenancy.
The next question was whether the notice had been ‘given’ to Pilkington as required by section 36(2). Henderson J said it was important to remember that the giving of a notice of severance is essentially a unilateral act, which does not depend in any way on the agreement of the recipient.
It was true that Masterson’s application was not served on Pilkington in any of the ways permitted by section 196 of the Law of Property Act 1925, and it could not be treated as having been served on Pilkington when it was first served on Quigley, because she did not at that stage have any authority to act on her father’s behalf.
But the position changed when the court ordered that Quigley should be made her father’s deputy for his property and affairs.
Quigley then had sufficient authority to receive a notice of severance on her father’s behalf and, since she plainly already knew about Masterson’s application, and Masterson took no steps to withdraw or modify it, the notice could and should be treated as having been ‘given’ to her at this point for the purposes of section 36(2).
Lesley King, is a principal lecturer at the College of Law