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 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 for there to be a joint tenancy. If any is missing or incongruent, there is no joint tenancy.
The “right to survivorship” is a critical aspect of joint tenancy, it describes the movement of land in a joint tenancy after a joint tenant’s death. Simply put, it dictates that if there is no severance in the joint tenancy(it is still intact) when one tenant dies, then the interest passes to the surviving joint tenants, who continue to be joint tenants. If there is only one surviving party, the freehold goes to the survivor exclusively. If both or all joint tenants die at roughly the same time, and it is difficult to decide who died first(and who takes the freehold), there can be no right to survivorship at common law and the property passes to their heirs who become joint tenants themselves. If the time of the deaths can be determined, the property passes to the younger or youngest.
The effect of the right of survivorship can be seen in the case of Gamble vs Hankle, wherein the plaintiff and her husband were joint tenants of a certain property . After her husband died, the plaintiff claimed the land was exclusively hers due to the right of survivorship. It was found, however, that her husband had purported to convey the land via gift of deed to another party. The courts held that the joint tenancy had thusly been severed by that act, and there was no joint tenancy.
A joint tenancy is not advised in cases where tenants have different or completely separate heirs or interests as to what happens to the land when they die. For this, there is tenancy in common.
Any words of severance or acts of severance, such as a tenant acting upon his own share, or a mutual agreement to sever, in a joint tenancy, for instance in the case Re 88 Berkeley Road, NW9  1 All ER 254, Chancery Division, results in a severance of the joint tenancy and a tenancy in common. As is described by Justice Joyce in Re Wooley (1903 Bibliography Law of Property Act 1925 Chigbo Clement (2005 ) “…anything which in the slightest degree indicates an intention to divide the property must be held to abrogate the idea of a joint tenancy.”
A tenancy in common is essentially the opposite of a joint tenancy. Both parties hold separate and specified shares of the property. Therefore, there is no right to survivorship, and both parties will need to pass their shares on to individual heirs through wills or otherwise. Upon death, a surviving tenant in common gets nothing from the deceased party, unless it is specified he should.
It should be noted, however, that there are circumstances wherein tenancy in common can occur without severance or direct intention. If money is purchased and distributed in unequal shares, it becomes a tenancy in common. Where two or more people take a mortgage of land and borrow to themselves jointly, they are seen as tenants in common at equity though they would be joint tenants at common law. Finally, where business partners purchase land as a part of their partnership assets, they are presumed by law to be tenants in common rather than joint tenants, as the right of survivorship has no place between merchants in English law.
In summary, a joint tenancy is ownership of “everything and nothing” by both joint tenants. There is no distinction in their interests and there are no words of severance. Furthermore, there exists a right of survivorship, which dictates that surviving joint tenants gain the rights of deceased ones until only one tenant remains, who gains the freehold exclusively. On the flip side, tenancy in common is the opposite of joint tenancy. Tenants in common own specified shares in property, and there is no right to survivorship, interest passes through wills and deeds. It is to the discretion of the parties seeking interests in land together to decide which is best for them. The typical rule tends to be, however, if one has different interests from the other party one wishes to own property with, then a tenancy in common is recommended. Therefore, joint tenancy is typically recommended for married couples, not friends or unmarried couples.
Keenan, D.(2001) ; Smith and Keenan’s English Law; Pearson Education Limited.
Dixon, M and Griffiths, G.(Mar 12, 2009); Q&A Land Law 2009-2010 (Questions and Answers) Routledge-Cavendish.