by Santano Mccalla

Created on: August 08, 2011   Last Updated: August 12, 2011

The Difference Between Joint Tenancy and Tenancy in Common Under English law

Tenancy in this context, does not refer to the landlord and tenant relationship. It refers to the ways one person enjoys an interest in land. Typically, individuals live on the same property and both share interests in it. These interests define what each party can do with and on the land, and how the land can be distributed after their death. The major

defining differences between Joint tenancy and Tenancy in Common in English law lie here, as well as the importance of these distinctions for clients in a court of law, or individuals seeking guidance as to their interests in land owned concurrently with others.

Joint tenancy is a much used form of tenancy in English law, and is defined in the case of Wright vs Gibbons: “in contemplation of law, joint tenants are jointly seized for the whole estate they take in land and not one of them has a distinct or separate title, interest or possession.”  In simpler terms, joint tenancy is 100%-100% ownership. No party owns any distinct part of the property, they both own it all together, as is seen in Paton vs Roulstone[1976] where Watkins J.A. said “In beneficial joint tenancy, each joint tenant holds nothing by himself but holds the whole together with his fellows.” Therefore no one part can say “this section is exclusively mine”, because it all belongs to them both, as proclaimed by the maxim of "totum tenet et nihil tenet" - “they own everything, yet nothing.”

In order for land to be jointly owned there needs to be the presence of certain features. There must be no words of severance, such as “divided” or “shared” or “split between.” There must be a right to survivorship (Ius accrescendi,) and finally the "Four Unities" of tenancy must be present.

The Four Unities describe how property can be owned jointly. These are:

The unity of Possession, meaning that each party is entitled physical possession of the entire land. The unity of Interest, meaning that each tenant’s interest in the land must be of the same extent, nature and duration, therefore a legal interest would clash with an equitable interest. The unity of Time, meaning each interest must have been vested at the same time. And finally, The unity of Title meaning each party must have derived their interest from the same document for example the same deed.

These must all be present and in order

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