Til death us do part: joint tenancy as property

Galloway, Kate (2008) Til death us do part: joint tenancy as property. In: Presentations from the 63rd Annual Australasian Law Teachers Association Conference. pp. 1-14. From: ALTA 2008 63rd Annual Australasian Law Teachers Association Conference: the Law, the environment, Indigenous peoples: climate for change? , 6-9 July 2008, Cairns, QLD, Australia. (Unpublished)

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Abstract

What is the true nature and extent of the interest of the joint tenant, as distinct from their joint interest in the property itself? Can the joint tenancy itself constitute property? And, will the extent of a joint tenant’s interest always be an undivided moiety? This paper reviews two recent decisions: Peldan v Anderson (2006) 80 ALJR 1588 and Cummins v Cummins [2006] HCA 7. At first instance, the court in Peldan v Anderson conceptualised the severance of a joint tenancy as a transfer of property. This was discussed also in the Federal Court decision and in the High Court on appeal. The Federal Court analysed the severance of a joint tenancy in terms of the alienation of a bundle of rights, indicating an understanding of a joint tenancy as itself a property interest. This paper uses Penner’s challenge to the ‘bundle of rights’ theory of property as a framework to reject this. Having determined the nature of a joint tenancy as other than property, the paper refers to Cummins to examine the extent of the joint tenant’s property interest. This case shows a contemporary application of equitable rules that result in the deconstruction of the joint tenant’s undivided moiety. Together, these cases highlight the challenges associated with finding the true extent of ‘ownership’ and ‘property’ where a joint tenancy is involved.

Item ID: 21746
Item Type: Conference Item (Presentation)
ISBN: 978-0646-49497-5
Keywords: property law; joint tenancy; property theory
Date Deposited: 19 Jun 2012 06:07
FoR Codes: 18 LAW AND LEGAL STUDIES > 1801 Law > 180124 Property Law (excl Intellectual Property Law) @ 100%
SEO Codes: 94 LAW, POLITICS AND COMMUNITY SERVICES > 9499 Other Law, Politics and Community Services > 949999 Law, Politics and Community Services not elsewhere classified @ 100%
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