Severance of a Joint Tenancy: Will, Unregistered Transfer, and Registered Mortgage
In 2005, Ada, Bola and Chidi inherited a four-bedroom house as joint tenants at law and in equity, registered in all three names. In March 2019 Ada made a will leaving "all my property" to her son Femi. In June 2020 Ada signed a transfer of "my one-third share" to a developer, Dele, for ₦8 million; the transfer was never registered, but Dele paid and took possession of a store at the back. In September 2020 Ada granted a mortgage over "my undivided share" to a microfinance bank; the mortgage was registered. In January 2021 Ada died. Bola and Chidi claim the entire house by survivorship and seek to eject Dele, who continues to occupy the store and pays no rent. The jurisdiction requires registration for legal interests but treats contracts for value as creating equitable interests; no statutory severance notice was served.
1. Did Ada's will of March 2019 sever the joint tenancy? Explain the effect of the will, the 2020 transfer to Dele and the registered mortgage on survivorship.
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No severance by the will. A will is ambulatory and takes effect only on death. Until then Ada retained the right to revoke it, so it did not amount to an alienation or a course of dealing. Survivorship operates on death before the will is read, so the will cannot itself cut off the jus accrescendi: the share passes to the surviving joint tenants unless the joint tenancy was severed during Ada's lifetime.
Severance by the 2020 transfer. A contract for value to transfer an undivided share is one of the classic modes of severance by alienation. Although the transfer was unregistered and therefore did not pass the legal estate, equity treats Ada as holding her share on trust for Dele to the extent of the contract. The joint tenancy is severed in equity, and the legal joint tenancy cannot be asserted against Dele.
Severance by the mortgage. A mortgage or charge of one joint tenant's undivided share is also an alienation and severs the joint tenancy. The mortgage was registered, so it is effective at law as well as in equity. After September 2020 Bola, Chidi and Ada (or her estate) held as tenants in common in equal one-third shares, and Ada's share was subject to the bank's charge.
Result. Survivorship cannot defeat Dele. On Ada's death her one-third share passed under her will to Femi, subject to the registered mortgage; Bola and Chidi retain only two-thirds between them.
2. Can Bola and Chidi eject Dele from the store, and can they claim occupation rent or an account from him?
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Ejectment fails. A tenant in common is entitled to possession of the whole property, not merely a proportionate part; Dele's occupation of the store is therefore not trespass against his co-owners. The proper remedy for Bola and Chidi is partition or sale under the co-ownership statute, not ejectment.
Occupation rent. A co-owner in occupation does not normally pay occupation rent to the others unless there has been ouster, an agreement to pay, or a claim in equity for an account. Dele has not excluded Bola and Chidi from the house; he occupies only the store. Bola and Chidi may, however, be liable to account to Dele for rents they receive from third parties, and Dele must account for any rent he receives from third parties (not for the value of his own occupation).
Mortgagee's position. The bank's registered charge over Ada's one-third share binds the co-owners' interests; if the bank enforces, a purchaser takes Ada's share subject to the co-ownership. Bola and Chidi should consider buying out Femi and Dele or seeking sale, because a co-owner cannot compel the others to sell privately without agreement or a court order.