Analysis
The claim was brought by the executor of the estate of Iris Mary Fantini. Iris and Gloria Fantini were mother and daughter respectively. They jointly owned a property at 7 Merlin Way, Mudeford, Dorset. Gloria predeceased Iris. The application was brought under Part 64 of the CPR to determine whether the joint tenancy was severed by Gloria and whether Iris’s estate’s costs of the claim should be met from the remaining sale proceeds of the property.
On 5 December 2013 Gloria had executed a will and signed a notice purporting to sever the joint tenancy under s36(2) of the Law of Property Act 1925. It was posted by registered post to Iris the same day. The solicitors acting for Gloria then applied to register a restriction with the Land Registry. The Land Registry wrote to Iris on 11 December 2013 in a letter headed ‘B61 Notice of Severance of a Joint Tenancy’. On 15 December Gloria died. The letter serving the notice of severance was then returned undelivered.
The claimant’s position was not neutral: his position was that the joint tenancy had not been severed and Gloria’s share had passed to Iris by survivorship.
Held:
- 1) Iris had never received the notice. It was returned undelivered and the deeming provision of s196(4) of the Law of Property Act 1925 operated as a deeming provision where a letter was not returned. Here it was returned undelivered and it was not to be treated as sufficiently served (WX Investments v Begg [2002]). A declaration that was not communicated to the other co-owner could not constitute an act operating on Gloria’s share.
- 2) There was a qualitative difference between a court process which was served on a co-owner and an administrative application to the Land Registry which was not copied to the co-owner. The application to the Land Registry in isolation could not constitute an act of severance operating on Gloria’s share.
- 3) The letter from the Land Registry to Iris was accepted as having been received by her. The question was whether a reasonable recipient of the letter would have thought that this was a notice of severance or an act operating on Gloria’s share. The certification on the Land Registry application was not correct as the notice of severance referred to had not in fact been served. The purpose of the letter to Iris was to explain that a restriction had been entered and what the impact of it was. The letter and the guidance notes were not sufficiently unambiguous to constitute notice of severance.
- 4) The costs of the application were necessarily incurred and the issue had to be determined to allow Iris and Gloria’s estates to be fully administered. The claimant had acted reasonably in bringing the claim and how he had conducted the proceedings. The costs could be met from the remaining proceeds of sale.
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