The Judgment Mortgage and the Joint Tenancy

A joint tenancy carries the right of survivorship. Severance converts it into a tenancy in common. Severance can occur by alienation, agreement, mutual conduct, or a written notice under the relevant property statute, but it requires an act operating on the joint tenancy during the joint tenants' lifetimes. Registering a judgment mortgage against Tom's interest is a charge, not a transfer of that interest. In Irish practice a judgment mortgage does not by itself sever a joint tenancy; it encumbers whatever interest the debtor has, but if the joint tenancy remains intact, that interest is extinguished by survivorship on death. The folio still shows a joint tenancy and there is no registered severance, transfer or court order. On the facts, the bank's judgment mortgage therefore does not defeat Miriam's survivorship. The bank's position would be different if Tom had severed before the charge or if the court had made an order. The bank may still argue that registration of the judgment mortgage was an act of alienation, but that argument is weak on current Irish authority.

A will is ambulatory: it speaks from the testator's death and disposes only of property the testator beneficially owns at death. If the joint tenancy was not severed before Tom died, Tom had no separate 'share' to leave. The words 'my share of the cottage' are therefore ineffective; Sarah takes nothing in the cottage. Making a will is not an inter vivos act of severance, and a purported gift of a joint tenant's interest does not sever the joint tenancy. If Tom had severed, Sarah would take his half, but that half would be subject to the bank's judgment mortgage, and the bank could enforce against it. Sarah's remedy, if any, is against Tom's estate for other assets, not against Miriam or the cottage. The executor should not assent the cottage to Sarah. Miriam's title should be confirmed by a survivorship application, supported by the death certificate and the will.

Miriam should apply to the Property Registration Authority or Land Registry to update the folio on foot of Tom's death, using a survivorship application, and seek cancellation of the judgment mortgage as it affects the property. She should furnish the death certificate, grant or probate if required, the will, and a statutory declaration that no severance occurred. The bank may object; if it does, Miriam should seek a declaration from the court that the joint tenancy was not severed and that the charge does not bind her. Before sale, the purchaser's solicitor will require the judgment mortgage to be removed from the folio or a release or indemnity. Miriam should also check for other burdens and ensure the sale contract discloses the dispute. If the bank refuses to release, a court order will be needed; the bank's claim, if any, is against Tom's estate, not the property in Miriam's hands. Do not sell with the judgment mortgage still registered without a retention or undertaking.