Kinch v Bullard
| Kinch v Bullard | |
|---|---|
| Court | High Court |
| Citation(s) | [1998] 4 All ER 650, [1999] 1 WLR 423 |
| Case opinions | |
| Neuberger J | |
| Keywords | |
| Co-ownership | |
Kinch v Bullard [1998] 4 All ER 650 is an English land law case, concerning co-ownership of land and the conditions for severance of a joint tenancy.
Facts
Mr and Mrs Johnson, beneficial joint tenants, were getting divorced. Mrs Johnson was terminally ill. Mrs Johnson sent him a letter by ordinary first class post stating her intention to sever her interest. It was delivered, but before seeing it Mr Johnson suffered a heart attack. Mrs Johnson realised she was likely to outlive him, so she destroyed the letter. He died a few weeks later, and she died a few months later. Their executors brought an action to determine whether the notice was effective to sever (so if it did not, then Mrs Johnson’s will would have got the whole property).
Judgment
Neuberger J held that the notice was effective. He noted counsel’s argument that because Mrs Johnson no longer, at that time, ‘desires to sever the joint tenancy’, the statutory precondition for giving valid notice was not there under section 36(2). This was wrong because the function of section 36(2) was not to bring the court to enquire into the parties’ state of mind. He said the following.[1]
| “ | I reach this conclusion based on the proper construction of section 36(2). However, it appears to me that it is also correct as a matter of policy. If it were possible for a notice of severance or any other notice to be ineffective because, between the sender putting it in the post and the addressee receiving it, the sender changed his mind, it would be inconvenient and potentially unfair. The addressee would not be able to rely confidently upon a notice after it had been received, because he might subsequently be faced with the argument that the sender had changed his mind after sending it and before its receipt. Further, as I have already mentioned, it is scarcely realistic to think that the legislature intended that the court could be required to inquire into the state of mind of the sender of the notice in order to decide whether the notice was valid. | ” |
But it would be different if a withdrawal was communicated before a notice was ‘given’, and referred to Holwell Securities Ltd v Hughes. This was just, however, ‘no more than a tentative view.’
See also
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References
- ↑ [1999] 1 WLR 423, 428-429