A married couple, Mario Caruso and Catherine Whitty, purchased a property to be their matrimonial home. To help fund the purchase, Caruso obtained a loan from his siblings. As part of the transaction, Whitty executed a deed appointing Caruso as her attorney to sell the property if he defaulted on repaying the siblings. The deed was later amended to allow Caruso’s executor to exercise this power of sale upon his death. Caruso died without a will. Whitty argued the property was held as joint tenants, vesting solely in her on his death. The siblings argued the deed evidenced an intention to sever the joint tenancy and hold as tenants in common. The courts found the amendments showed an intention to sever the joint tenancy to avoid the commercially absurd result of Whitty having a right of first refusal over a property she already fully owned.
This decision discusses the statutory presumption favoring joint tenancy for registered land owners. It explains equity can intervene to treat the beneficial interest as held by the owners as tenants in common, either when first acquired or later by conduct severing the joint tenancy. The key characteristics of a joint tenancy are the four unities (of possession, interest, title, time) and the right of survivorship. The ways a joint tenancy can be severed are:
(1) an act of one joint tenant operating on their share;
(2) mutual agreement; and
(3) course of conduct indicating the interests were mutually treated as a tenancy in common.
The case focused on the third method. Equity leans against joint tenancies as they involve an element of chance. Little evidence is needed to show intention to divide property and hold as tenants in common. However, for a married couple acquiring a matrimonial home, equity presumes they intend to hold as joint tenants. The evidence of intention must be unequivocal in this context.
Link https://jade.io/article/1050891