TOPIC

SUCCESSIVE AND
SHARED RIGHTS AND
INTERESTS IN
PROPERTY
Topic 3: Successive and shared rights and interests in property 3.2
Topic overview
In the preceding Topic we were looking at the way in which the law
allows for rights and interests in property to be vested in interest and
vested in possession, and that vesting in possession may take place at the
same time as vesting in interest, or it may take place at a later time in the
future.

In this Topic we will be looking at the way in which the law allows for rights and
interests in property to be vested in interest at a later time in the future, and also how
rights and interests which are vested in interest in a person may be shared with other
people.

To p i c o u t l i n e
1. Successive Rights and Interests—future rights and interests, rights and
interests in expectancy
1.1 Real Property
1.1.2 Rights in reversion
1.1.3 Rights in remainder
1.2 Personalty
1.2.1 English common law
1.2.2 American common law
1.3 Rule against perpetuities
1.3.1 Introduction
1.3.2 Description of rule against perpetuities/remoteness of vesting
1.3.3 Statutory modifications of rule against perpetuities
1.4 Statutory restrictions upon accumulations of income
1.4.1 Introduction
1.4.2 Statutory provisions restricting accumulations of income
2. Shared Rights and Interests in Property
2.1 Introduction
2.2 Joint tenancy
2.2.1 Severance during lifetime
2.2.2 Court powers to regulate severance
2.2.3 Right of survivor if no severance during lifetime
2.3 Tenancy in common
2.3.1 Equitable tenancy in common
2.3.2 Severance during lifetime and at death
2.3.3 Court powers to regulate severance
2.4 Shared rights under customary law
2.5 Physical intermixing of property
2.5.1 Separable elements
2.5.2 Inseparable mixture
2.5.3 Intermixture caused by wrongdoing
SUMMARY
KEY TERMS
REVIEW QUESTIONS

Topic 3: Successive and shared rights and interests in property 3.3

Learning outcomes
After you have successfully completed this topic you should be able to:
 Explain the way in which the law allows for rights and interests in
property to be vested in interest at a later time in the future
 Discuss the concepts of real property and personalty
 Discuss how rights and interests which are vested in interest in a
person may be shared with other people

Checklist of activities
To complete this topic you must:
1. Complete the in-book and online activities;
2. Read these course notes; and
3. Complete the set readings.

Readings
Reading 3.1: Garrow and Fenton, Law of Personal Property in New
Zealand, 6th ed, 1998, Wellington, Butterworths, Ch 2
Reading 3.2 Vol 35, Halsbury’s Laws of England, 4th ed, 1995,
London, Butterworths, paras 1229–1230, 1243–8
Reading 3.3: 20 Am Jur 2d, Cotenancy and Joint Ownership, paras 1–
31
Reading 3.4: 28 Am Jur 2d, Estates, paras 205 -207; 351–353
Reading 3.5: 61 Am Jur 2d, Perpetuities and Restraints on Alienation,
paras 1–32, 75–84

Study time
You should spend approximately 6–8 hours working through this topic.
Remember to undertake all the activities and to think about the questions
posed.

Studying course notes 150 min

Studying Reading 1 60 min
Studying Reading 2 60 min
Studying Reading 3 60 min
Studying Reading 4 60 min
Completing Review questions 30 min
Total (Approximate) 420 min

Topic 3: Successive and shared rights and interests in property 3.4

1 Successive Rights and Interests—future rights
and interests, rights and interests in
expectancy
The common law recognised that rights or interests in land could be created which
would become vested in interest in the future, and would become vested in possession
also at some time in the future. These are nowadays often called future rights and
interests, but in earlier times they were often called rights and interests in expectancy.
Future rights and interests were most commonly created in England in earlier
centuries in relation to land, and were designed to ensure that large areas of land
could remain vested in later generations of the same family. The courts of common
law were, however, concerned that this might result in excessive land holdings by a
small group of families and developed some very quite elaborate rules to regulate
future rights and interests in land.
There was not so much demand in England to create future rights and interests in
personal property, but the common law followed the same basic principles with
regard to future rights and interests in personal property.
In recent times in England the desire to create future rights and interests in real
property has declined, partly because the large land holdings that once existed have
now been broken up, partly because tax liabilities have been imposed upon the
creation of future rights to property, and partly, also, because nowadays people are
much more mobile, and young people are not so willing to accept what is provided
for them by their parents, but are more interested to get out and make their own way
in the world.
In countries of the South Pacific, future rights in land are still very much a feature of
customary land, but with regard to non-customary land there is even less interest than
in England in creating future rights and interests in land or personal property. Partly
this is because non-customary land is mainly owned by people from another country
who are not planning to make their permanent home in the island country of the
South Pacific in which they are living, and even if they are, they are not expecting
their children to wish to make their lives in that country. Accordingly, there is not
much demand for, or interest in, creating future rights and interests in non-customary
land in island countries of the South Pacific.
Similarly, with regard to personal property, it is unlikely that non-indigenous people
would acquire very valuable personal property which they would want to ensure is
retained by their children and grand-children.
Accordingly, there is not much demand for, or interest in, creating future rights and
interests in real or personal property in island countries of the South Pacific. We
should however be aware of the broad outlines of the principles of law regulating to
future rights and interests in property in island countries of the South Pacific.

Topic 3: Successive and shared rights and interests in property 3.5

1.1 Real Property
1.1.2 Rights in reversion
Reversion is the term given to describe the right of an owner of freehold estate who
grants rights in it to some other person to re-acquire full rights of ownership in
possession at a later stage.
A right in reversion most usually arises when the owner of a freehold estate grants
lesser rights, eg a life estate or a lease for a fixed period, to another person. When the
lesser rights which have been granted come to an end, the owner will acquire full
rights of ownership. Thus the owner of a freehold estate of land may wish to grant an
estate for life to some person, which is to return to the grantor after the death of the
grantee, or lease it to some other person for a period of 21 years for payment. During
the period of the grant the freehold estate is not vested in possession, but the owner
retains a freehold estate in reversion and once the lesser rights expire, the full rights
of possession revert to the owner.
In this situation, the property is vested in interest in the owner, and the owner all the
time retains the vested right of ownership of the property, but carves out of this right
certain lesser, more limited rights, of enjoyment of that property for another person.
These more limited rights, which must expire before the full rights of ownership
revert to the owner, are often called the particular rights or interests as distinct from
the rights or interests in reversion. At the expiration of the limited rights, the
particular rights, the full rights over the property return to the owner automatically as
a matter of law. The usual forms of reversion nowadays occur in England when the
owner of a freehold estate grants a lease of that land to another person, or where the
owner of the freehold estate grants a life estate to another person. In countries of the
South Pacific, freehold estates for life are not usually granted, and so the main scope
for rights in reversion is in respect of grants of leases by a freeholder.

1.1.3 Rights in remainder

The common law allowed that owners of freehold estate could in the one document,
deed or will, vest the interest and possession of a freehold estate for life in a person,
and also provide that on the death of that person, the right to that estate for life would
vest in another person, and on the death of that person the right to that estate for life
would vest in another person, ad infinitum. In this way, great landowners could
ensure that that land would be owned by their children, with remainder to their
children’s children, and remainder again to their children’s, children’s children etc.
The rights that were vested in interest by the document were described as vested
remainder. The courts also accepted that landowners could create contingent
remainders whereby the interest in the freehold would vest only upon fulfilment of a
certain condition, eg attainment of 21 years, or marriage to a certain person, or
adoption or rejection of a certain religion.
The courts of common law were concerned about the possibilities of land being tied
up in the same family for generations, and in the sixteenth century the royal courts of
common law developed a number of common law rules, often referred to as the legal
remainder rules, to regulate remainders in land. The most important of these legal
remainder rules from the point of view of countries of the South Pacific are: that
rights and interests in remainder can only be created in respect of freehold estates, not
leaseholds, because leasehold estates are of fixed duration; and that remainders
cannot be created after the creation of a freehold estate in fee simple, because that is

Topic 3: Successive and shared rights and interests in property 3.6

regarded as repugnant to the fee simple, and therefore void.. The effect of these rules
is that remainders can only be created for rights and interests in freehold estates in fee
tail or freehold estates for life.
But in the two countries of the South Pacific where freehold estates exist to any
significant extent, Fiji and Samoa, freehold estates in fee tail are expressly prohibited:
s16 Property Law Act, cap 130 (Fiji); s14 Property Law Act 1952 (NZ) in force in
Samoa. Freehold estates for life are, however recognised as lawful by legislation in
both countries: s15 Property Law Act and s76 Land Transfer Act (Fiji): s18 Property
Law Act 1952 (NZ), which is in force in Samoa. In practice it appears that future
estates in freehold are not often created in either country, but the law certainly allows
for them to be created so we need to be aware of them, and of the restrictions that
apply to them.

1.2 Personalty
1.2.1 English common law
There has been much debate in England as to whether future rights to personal
property could be created, and, if so, what kind of future right could be created. At
one time it seems that the common law did not recognise that future rights could be
created to personal property at all. Personal property could not be divided into estates
like real property, and at one time it was thought that no right to personal property
could, or should, be recognised and protected by the courts. There were two main
reasons for this: first, that the goods and objects that comprise personal property
frequently disappear, as a result of theft, breakages or loss; and secondly that they are
easily transferable by their owners to others. This was explained in Blackstone’s
Commentaries on the Laws of England, vol ii, p398, as follows: “By the rules of the
ancient common law, there could be no future property to take place in expectancy
created in personal goods and chattels; because, being things transitory, and by many
accidents subject to be lost, destroyed or otherwise impaired, and the exigencies of
trade requiring also a frequent circulation thereof, it would occasion perpetual suits
and quarrels, and put a stop to the freedom of commerce, if such limitations in
remainder were generally tolerated and allowed.”
This view was reflected in the following cases:
 Re Tritton (1889) 61 LT 301—a testator bequeathed all his pictures to his wife
during her life, and then to his son. The son, during the life of the widow,
assigned his interest under his father’s will, and then went bankrupt. Wills J
said: “It seems to me clear upon the authorities that you cannot have life estates
and remainders out of personal chattels, and that…this lady [the widow has] the
property in these things during her lifetime. It seems to me that the interest of the
son was an executory bequest which creates no present or vested interest.”
 Re Thynne [1911] 1 Ch 282—a testator bequeathed diamonds and pictures to his
son with remainder to the son of the son who mortgaged his interest and then
became bankrupt. Neville J declared, p 285, that “the interest of the reversioner
(sic)…is not a chose in possession but a chose in action”.
On the other hand, the courts of equity were prepared to recognise that a right in
remainder in personal property could be created which would be recognised as an
equitable interest:
 Re Swan [1915] 1 Ch 829—a mother bequeathed some valuable jewellery and
lace to her daughter with remainder to her son. After the death of the daughter

Topic 3: Successive and shared rights and interests in property 3.7

 some of the jewellery could not be found. The son was held able to claim the
value of this disappeared jewellery from the executor of his sister’s estate.
Sargant J said: “it is in my opinion quite clear that the ultimate taker had a
definite right in the property which would be protected by a Court of Equity…I
see no reason why the first taker should not be deemed as to the possession of the
articles to be a trustee for the remainderman subject to her own life interest, and
to be subject in that respect to the ordinary law of trust.”
The courts of equity also accept that a future interest in personalty may be created by an
express trust, either inter vivos or by will:
 Re Backhouse [1921] 2 Ch 51—a testator bequeathed a valuable painting to
trustees to be held on trust for his eldest son for life, then the younger son for life
and then the daughter for life, and after her death to the eldest and other sons
successively, of the eldest son, living at the time of the death of the daughter, and
then to the eldest and other sons, successively, of the younger son, and then the
eldest and other sons, successively, of his daughter. The High Court held that the
gifts to the sons and daughter of the testator, and to the sons of the eldest son
living at the death of the daughter were valid. The gifts to the sons of the younger
son and of the daughter were, however, invalid because they were in breach of
the rule against perpetuities (see below).

1.2.2 American common law

In America, the courts do not appear to have been so reluctant to recognise that legal
interests in remainder can be created for personal property, and have been willing to
recognise that legal interests in remainder can be created in personal property. “At
early common law, there was no remainder to a chattel interest, and any gift or
bequest of a chattel, no matter how short the time, passed the absolute property…The
rules governing future interests in real and personal property are now substantially the
same, so that the modern rule is that interests in expectancy can be created in personal
as well as in real property, either by deed or will, except where the distinctions are
founded upon some substantial principle of law or required by some statutory
enactment.”: 28 AmJur2d Estates, para 205.
1.2.3 Summary
In England it seems that the courts will recognise that future interests can be created
in personal property, but only these are only equitable interests, and so may be
defeated if the goods are sold to a bona fide purchaser without notice . Future
interests in personal property in countries following English common law can,
therefore, only be enforced against a person who acquires the goods as a volunteer, ie
as a gift; or who acquires them by purchase but is aware of the future interest. On the
other hand, in countries following American common law, future interests in personal
property can be enforced as legal interests against anyone acquiring that
property.

1.3 Rule against perpetuities

1.3.1 Introduction
The courts of common law in England, having allowed property owners to vest rights
in that property—at least real property—in future generations to come, became
alarmed that they may thereby have allowed property owners to shackle the
ownership and use for too long in the future, by creating successive rights into the

Topic 3: Successive and shared rights and interests in property 3.8

future. The courts tried to put a curb on such future vesting, not only by developing
the rules against remainders already discussed (see above), but also by developing the
rule against perpetuities, also known as the rule against remoteness of vesting. This
rule, which has also been adopted by the common law in America, applies to the
vesting of interests in both real and personal property.

1.3.2 Description of rule against perpetuities/remoteness of vesting

The rule was stated by Lord Kenyon in Long v Blackall (1797) 101 ER 875 in
relation to real property : “It is an established rule that an executory devise is good if
it must necessarily happen within a life or lives in being, and twenty-one years and
the fraction of another year, allowing for the time of gestation.”; and in Joe v Audley
(1787) 29 ER 1186 in relation to personal property: “Limitations of personal estate
are void unless they must necessarily vest, if at all, within a life or lives in being, and
twenty-one years or nine or ten months afterwards.” These statements of the rule of
common law were approved by the House of Lords in Cadell v Palmer (1833) 5 ER
759, and this rule of common law was held by the Privy Council in Cooper v Stuart
(1889) 14 AC 286 to be not inappropriate to the circumstances of overseas territories
of Britain to which English common law was applied.
This rule of English common law has also been adopted in American common law,
and is well described in the following passage from 61 Am Jur 2d, Perpetuities and
restraints on Alienation, para 5: “The orthodox rule against perpetuities prohibits the
creation of future interests or estates which by possibility may not become vested
within a life or lives in being at the time of the testator’s death or the effective date of
the instrument creating the future interest, and 21 years thereafter, together with the
period of gestation when the inclusion of the latter is necessary to cover cases of
posthumous birth. Stated affirmatively, the rule against perpetuities allows the
postponement of the vesting of an estate or interest for the period of lives in being
and 21 years and the period of gestation. Hence under this rule, no interest subject to
a condition precedent is good unless the condition must be fulfilled, if at all, within
21 years and the period of gestation after some life in being at the creation of the
interest.”
It is important to recognise that the rule against perpetuities applies to all contingent
remainders and reversions of property, both real and personal. Below are examples
of the impact of the rule against perpetuities in relation to both real and personal
property:
Re Dawson 39 Ch D 135. A testator in his will directed to hold d all his
property on trust for his daughter, Mary, and on her death for such of her
children as were then living and have attained 21 years, and also for such
children as attained 21 years of any son of Mary who should die under the age
of 21 years. The court held that the gift to the children of Mary was valid, but
the gift to the children of any son of Mary was void, because she might have a
son who could have children beyond the period of 21 years after Mary’s
death, even although Mary was aged 60 years at the time of the testator’s
death, and was past the age of normal child bearing.
Re Wood [1894] 1 Ch 381 A testator in his will directed his trustees to carry
on his business as a gravel contractor until the gravel pits ran out, and then to
sell them and hold the proceeds for such children as were then living. The
Court held that the gift to the children was too remote, because at the time
when the will came into effect upon the death of the testator it was not certain

Topic 3: Successive and shared rights and interests in property 3.9

 that the gravel pits would run out within the lives of the children plus 21
years, even although in fact the gravel pits did run out within 6 years of his
death.
Re Hill [1902] 1 Ch 807—The widow of the second Viscount Hill bequeathed
some diamonds and jewellery to her son, the third Viscount, for life
and then “to each person who shall in turn succeed to the title and dignity of
viscount.” The Court of Appeal held that the gift to the fourth Viscount was
valid, but all subsequent gifts were void as contrary to the rule against
perpetuities because they might vest more than 21 years after the death of the
third Viscount.
Re Backhouse [1921] 2 Ch 51—Sir Jonathan Backhouse made a will whereby
he bequeathed a painting by Gainsborough, a noted English painter, to his first
son for life, and then to his second son for life and then to his daughter for
life, and then to the sons, successively in order of seniority, of his first son
living at the date of the death of the daughter, and then to the sons,
successively in order of seniority of his second son, living at the death of the
last surviving son of his first son, and then to the sons, successively in order
of seniority, of the daughter, and then to the heirs of the testator.
The High Court held that the life interests granted to the sons and the daughter
were valid, and also to the sons of the first son, because they were required to
be living at the date of the daughter, but all the bequests of the painting after
that were void as contrary to the rule against perpetuities, because there was
no certainty that they would vest within 21 years after the death of the two
sons and daughter of the testator.
a) Detailed elements of rule against perpetuities
The several elements of the rule against perpetuities are now considered in more
detail:
(i) “vest”—Vest in this context means vest in interest, not in vest in possession. In
order to vest, the taker must be ascertained and any conditions precedent
fulfilled, and, if the gift is to a group or class, such as children or
grandchildren, all the members of the group or class must be ascertained, and
their respective shares known. All these requirements must be certain to happen
within the perpetuity period, and if there is any possibility that a condition
precedent may not be fulfilled, or that all the members of a group, or their
respective interests, may not be known, within the perpetuity period, the gift is
void, and so also any subsequent gifts of that same property.
(ii) “must vest”—The interest must vest within the prescribed period. If there is any
possibility, no matter how remote or unrealistic, that it may vest outside that
period the gift is void and of no effect. For these purposes, all persons are
considered capable of procreating children, no matter how old (“the fertile
octogenarian”; Re Dawson (above)) or how young (‘the precocious toddler”; Re
Atkin [1974] 1 WLR 761 ), and all natural events are considered likely to occur
(“the magic gravel pits”—pits may continue to produce gravel indefinitely, even
although they are likely to be worked out in six or seven years; Re Wood [1894] 3
Ch 381).
The time for determining whether the interest must vest within the perpetuity
period is the time when the instrument comes into effect, which in the case of a

Topic 3: Successive and shared rights and interests in property 3.10

 gift is the date of the gift, and, in the case of a will, is the death of the testator.
What happens after that time is irrelevant: Re Wood (above).
(iii)“life or lives in being”—The person(s) whose life(ves) are to mark the perpetuity
period must all be alive at the time that the right or interest is created; ie date of
gift inter vivos, or date of death of testator. There may be one life, as in Re Hill
(above) or there may be more than one, as in Re Backhouse (above), but they
must be ascertainable. The donor may specify who they are, but, if not, the courts
imply who they are from the terms of the instrument. As regards gifts inter vivos,
the life will usually be implied to be the life of the donor, and as regards gifts in
wills the lives will usually be implied to be the first persons to receive the
bequest, normally the child(ren) of the testator(trix).
If no life or lives are expressed or can be implied, the period will be twenty-one
years.
(iv) “plus twenty-one years”—This additional period was selected by the courts to
allow for donors to stipulate that an interest would vest only when the donee
reached his or her majority under the common law.
(v) “plus gestation period”—This period of nine or ten months was allowed by the
courts to enable children to benefit who were conceived at the time of the creation
of the interest, even although not yet born.
b) Effect of rule.
If a vesting infringes the rule against perpetuities it is completely void, as are all
subsequent future vestings. If the vesting is made in a gift or sale inter vivos, the
vesting totally fails, and in a will, the property to be vested, falls into residue, or, if
there is no residuary clause in the will, it is dealt with under the rules of intestacy.

1.3.3 Statutory modifications of rule against perpetuities

In most countries, there is legislation in force which modifies some of the aspects of
the common law rule against perpetuities. The legislation in force is not, however, the
same in all countries of the USP region.
a) Cook Islands, Kiribati, Niue, Samoa, Solomon Islands, Tuvalu
One relatively modest change was first made to the operation of the common law rule
against perpetuities by s163 Law of Property Act 1925 (UK). This section provided
that where a gift of property in an instrument is made to depend on reaching an age
greater than 21 years, the age in the instrument should be reduced to 21 years. This
section would appear to be part of the statutes of general application in force in
England in 1961, and so introduced into the legal systems of Kiribati, Solomon
Islands, Tonga, Tuvalu and Vanuatu. A similar provision was also contained in s25
Property Law Act 1952(NZ), which is in force in Cook Islands, Niue and Samoa.
b) Tonga
In Tonga, reliance upon English statutes of general application ceased in 2003 by
virtue of the Civil Law (Amendment) Act of that year, and so from then there has
been no legislative provision modifying the common law rule of perpetuities.
c) Fiji, Vanuatu
Further changes were made to the operation of the common law rule against
perpetuities by the Perpetuities and Accumulations Act 1964(UK), which was enacted
in England, following a report of the Law Reform Committee in 1956. The
Perpetuities and Accumulations Act 1964 (UK) was enacted too late to become part

Topic 3: Successive and shared rights and interests in property 3.11

of the statutes of general application of England applied in 1961 to the British
dependencies of Fiji, Kiribati, Solomon Islands, and Tuvalu, but it would seem to
have become part of the statutes of general application in force in England applied to
Vanuatu with its later “cut-off date” of 1st January 1976.
The Perpetuities and Accumulations Act 1964(UK) was followed by the Perpetuities
Act 1964 (NZ), but this Act was not applied to, or adopted by, Cook Islands, Niue and
Samoa. The Perpetuities and Accumulations Act 1964 (UK) did, however, provide a
model for sections 34–50 which were included in the Property Law Act, cap 130, Fiji.
So in Fiji, and also in Vanuatu, there are wider changes to the common law rule of
perpetuities or remoteness of vesting. The main changes made in that legislation are:
(i) Alternative perpetuity period—An instrument creating an interest may specify
that a period of time, not exceeding 80 years, shall be the perpetuity period, but if
none such is specified, the common law period will apply : s37 Property Law Act
Cap 130 (Fiji); s1 Perpetuities and Accumulation Act 1964 (UK).
(ii) Rebuttable presumptions as to child bearing and procreation—In the absence
of evidence to the contrary, a woman aged 55 years or more, and a male and
female child aged below 12 years, or in England, a male child aged below 14
years, shall be presumed to be incapable of procreating or bearing a child: s37
Property Law Act, Cap 130 (Fiji); s2 Perpetuities and Accumulations Act
1964(UK).
(iii)Wait and see rule—A provision creating an interest in property shall not be held
void until it is certain that the interest cannot vest within the perpetuity period:
s38 Property Law Act, cap 130 (Fiji); s3 Perpetuities and Accumulations Act 1964
(UK).
(iv) Reduction of qualifying age to 21—Where a provision creating an interest
would infringe the rule against perpetuities because the qualifying age is stated to
be more than 21 years, the instrument shall take effect as if that age was reduced
to 21 years: s40 Property Law Act, cap 130 (Fiji); s4(1)(2) Perpetuities and
Accumulations Act 1964 (UK).
(v) Closing of gifts to class or group—Where a provision which creates interests to
a class or group of people would be in breach of the rule against perpetuities
because the interest of some members of that group or class will not vest within
the perpetuity period, the provision will take effect as if it were limited to only
those members of the group or class whose interests must vest within the
perpetuity period: s40 Property Law Act, cap 130 (Fiji); s 4(3) Perpetuities and
Accumulations Act 1964 (UK).

1.4 Statutory restrictions upon accumulations of income

1.4.1 Introduction
The common law has developed no specific restrictions upon the accumulation of
income derived from property, apart from rule against perpetuities. However in some
countries it has been considered that the normal perpetuity period is too long for
income from property to be accumulated, and then vested in possession, and
restrictions upon accumulations of income have been introduced by legislation. The
legislative position is not the same in all countries of the USP region.

Topic 3: Successive and shared rights and interests in property 3.12

1.4.2 Statutory provisions restricting accumulations of income
a) Cook Islands, Kiribati, Niue, Samoa, Solomon Islands, Tuvalu
In 1800 Parliament in England enacted the Accumulations Act 1800(UK) to restrict
the periods during which income could be accumulated from property. This Act was
often called the Thellusson Act, because it was designed to prevent accumulations of
the kind that were held to be allowable under the common law by the House of Lords
in Thellusson v Woodford (1799) 32 ER 1030). Later the provisions of that Act were
incorporated into s164 Law of Property Act 1925 (UK). These provisions in effect
reduced the period allowed by the rule against perpetuities by about half in respect of
accumulations of income. They provided that accumulations of income from property
could continue only for one of the following periods: (a) the life of the grantor or
settlor; or (b) 21 years from the death of the grantor, settlor or testator; or (c) the
minority (ies) of any person(s) living or conceived at the death of the grantor, settlor
or testator; or (d) the minority (ies) of any person(s) who would if of full age be
entitled under the terms of the instrument to the income. Any direction for
accumulation for any other period is void, and the income directed to be so
accumulated shall go to the person who would have been entitled if there had been no
such direction.
Section 164 Property Law Act 1925(UK) would appear to be part of the statutes of
general application in force in England in 1961, and so introduced into the legal
systems of Kiribati, Solomon Islands, Tonga, Tuvalu and Vanuatu. This section was
also used as the model for s41 Property Law Act 1952(NZ), which was introduced
into the legal systems of Cook Islands, Niue and Samoa. Accordingly in Cook
Islands, Kiribati, Niue, Samoa, Solomon Islands and Tuvalu the restrictions against
accumulations of income provided in section 164 Law of Property Act 1925 (UK), as
described above, apply.
b) Tonga
As mentioned earlier, since 2003, Tonga has ceased to rely upon English statutes of
general application, so from that date onwards there have been no restrictions upon
accumulations of income arising from English statutes.
c) Vanuatu
In England two additional periods of time for the accumulation of income as provided
by s 164 Law of Property Act 1925(UK) were added in 1964 by section 13
Perpetuities and Accumulations Act 1964 (UK): (e) 21 years from the date of the
creation of the accumulations; or (f) the minority(ies) of person(s) living at the date of
the creation of the accumulations. This legislation was too late for incorporation in
the legal systems of most British dependencies, but it was in time to fall within the
extended incorporation dates of Vanuatu, ie 1/01/1976. Accordingly in Vanuatu six
alternative periods of accumulation are, as in England, allowed: the original four
periods allowed under the Law of Property Act 1925(UK), and the two additional
periods allowed by the Perpetuities and Accumulations Act 1964 (UK).
d) Fiji
In Fiji, on the other hand, s48 Property Law Act, cap 130 (Fiji) has followed the
model provided by s17 Perpetuities Act (WA) and s21 Perpetuities Act (NZ), and
allows for income to be accumulated for so long as the disposition of the accumulated
income is valid, and not otherwise, ie it may be accumulated for the normal
perpetuity period; ie the period of a life (lives) in being at the creation of the
accumulation, plus 21 years and, where relevant, the period of gestation, but no
longer.

Topic 3: Successive and shared rights and interests in property 3.13

e) American jurisdictions
Some American jurisdictions have adopted the model of the Accumulations Act 1800
(UK) and the Law of Property Act 1925(UK), whilst others have relied on the
perpetuity period as in Fiji: 61 Am Jur 2d paras 75–77.

2 Shared Rights and Interests in Property

2.1 Introduction
The common law allowed for rights and interests in property to be vested in one
person only, what used to be called “in severalty” but are now more commonly called
sole or individual ownership.
English common law also allowed for rights and interests in property, both real and
personal, to be shared, what used to be called “in commonalty”, or nowadays is more
often called co-ownership or mutual ownership. The same principles of common law
have been adopted by American common law.
Originally English and American common law recognised several different forms of
shared rights and interests, but some, eg co-parcenary ( common ownership by co-
heirs in which case each can sever and transfer his or her share—now absorbed by
tenancy in common (see below)) and tenancy by entireties (ownership by husband
and wife in which both were regarded as the owners of the whole, and they could not
sever their respective shares—now absorbed into joint tenancy(see below)), have
become obsolete, leaving two in existence today under English and American
common law: joint tenancy and tenancy in common. We will now consider these in
more detail.
2.2 Creation of co-ownership
Co-ownership of property may be created by express words, as where a person says
that he gives property to his two sons “as joint tenants” or “as tenants in common”.
If there are no express words then the courts will imply from the words and conduct
of the parties, and from the surrounding circumstances, what the parties would have
intended. The courts of common law were inclined to imply that the parties intended
a joint tenancy, in the absence of evidence to the contrary, as in the following case:
Hickson v Cook (1889) 8 NZLR 126—land in New Zealand was granted by
the Crown to TU Cook “in trust for the children now born, or hereafter to be
born, of the marriage of the said TU Cook with … his wife”. The Court of
Appeal held that the grant was a joint tenancy for the children, so that when
some of the children died during the life of Mr Cook, without transferring
their shares, the surviving children took the shares of the deceased children.

. The courts of equity, however, presumed an intention to create a tenancy in

common, especially where the contributions of the parties to the acquisition or
upkeep of the property, or their benefits from the property, were unequal:
 Malayan Credit Ltd v Jack Chia MPH Ltd [1986] All ER 711—Two companies
agreed to take a five-year lease of a floor in a building in Singapore, one
company occupying 62% of the floor space, and the other company occupying
the remainder, and their liability for rent and service charges, as well as stamp
duty and survey fees, was apportioned accordingly. The lease was sold and a
dispute developed between the two companies as to their respective shares of the

Topic 3: Successive and shared rights and interests in property 3.14

 sale price. The Privy Council held that although the lease was expressed to be to
the two companies and so would give rise to a presumption of joint tenancy
under the common law, there should be presumed an equitable tenancy in
common in unequal shares in proportion to their occupancy of the floor.
The rules of equity take precedence over the rules of common law, so this means that
one starts with the common law presumption that, in the absence of express words,
the parties would have intended a joint tenancy, but a tenancy in common is to be
presumed if the circumstances indicate that their contributions to, or benefits from,
the property are unequal, as in Malayan Credit Ltd v Jack Chia MPH Ltd (above).

Statutory provisions In Fiji, the legislation relating to the registration of legal

instruments relating to land transactions provides that ”unless the contrary is
expressed in the instrument of title, where two or more persons are registered as
proprietors of any estate or interest in land subject to the provisions of this Act, they
shall be deemed to be entitled to the same as tenants in common.” It is to be noted
that this provision only applies to legal instruments that have been registered under
the Land Transfer Act, and in the absence of evidence to the contrary. .

2.3 Joint tenancy

A joint tenancy allows all tenants to have equal rights to the whole property. A joint
tenancy is created when property is given to more than one person, without words of
severance or separation, eg “my farm to A and B”, as in the following case,already
referred to earlier:
 Hickson v Cook (1889) 8 NZLR 126—land in New Zealand was granted by the
Crown to TU Cook “in trust for the children now born, or hereafter to be born,
of the marriage of the said TU Cook with … his wife”. The Court of Appeal held
that the grant was a joint tenancy for the children, so that when some of the
children died during the life of Mr Cook, without transferring their shares, the
surviving children took the shares of the deceased children.

2.3.1 Severance during lifetime

During the lifetime of a joint tenant, but not upon death, the share of any joint tenant
can be severed and transferred to some other person, in which case the transferee
holds as tenant in common with the remaining joint tenants who remain as joint
tenants as between themselves for their undivided shares unless and until they sever
their shares.
Such severance cannot, however, be undertaken unilaterally, unless, perhaps, the
property is all of the same quality and value. Usually, severance must be undertaken
with the agreement of the other joint tenants, or in accordance with an order of a
court of equity. If it is not done in these ways, it will constitute conversion by the
severing joint tenant:
 Re Gillie; Ex parte Cornell (1996) 150 ALR 110—A woman who claimed to be
joint owner of a herd of 250 cattle and calves physically removed 125 cattle and
calves without the consent of the other co-owner. The Federal Court of Australia
held that her action constituted detinue, and made an order for the return of the
cattle.

Topic 3: Successive and shared rights and interests in property 3.15

2.3.2 Court powers to regulate severance
In Cook Islands, Fiji, Kiribati, Niue, Samoa, Solomon Islands, Tuvalu, and Vanuatu,
legislation is in force which expressly authorises courts to make orders to sever
personal property: s143(1) Property Law Act 1952(NZ); s122 Property Law Act Cap
130 (Fiji); s188(1) Law of Property Act 1925 (UK). The powers provided by this
legislation should always be used if severance is desired by one of the joint tenants in
order to avoid dispute and conflict between the joint tenants and/or their families.

2.3.3 Right of survivor if no severance during lifetime

If no shares are severed, the surviving joint tenant takes all the property which has not
been severed during lifetime. This right of survivorship, described in Latin as jus
accrescendi, is the distinctive feature of joint tenancy.

2.4 Tenancy in common

A tenancy in common allows all tenants to have shares, equal or unequal, which can
be divided and transferred by each co-owner, during lifetime and by will. A tenancy
in common is created when property is given to more than one person, with words of
severance or separation, eg “my farm to A and B, A as to ¾ share, and B ¼ share”.

2.4.1 Equitable tenancy in common

An equitable tenancy in common will be imposed by the courts upon a joint tenancy,
if the circumstances indicate that this is what the parties would have intended, eg if
the tenants have contributed unequally to the acquisition of the property, or if they
benefited unequally from the property:
 Malayan Credit Ltd v Jack Chia MPH Ltd [1986] All ER 711—Two companies
agreed to take a five-year lease of a floor in a building in Singapore, one
company occupying 62% of the floor space, and the other company occupying
the remainder, and their liability for rent and service charges, as well as stamp
duty and survey fees, was apportioned accordingly. The lease was sold and a
dispute developed between the two companies as to their respective shares of the
sale price. The Privy Council held that although the lease was expressed to be to
the two companies and so was a legal joint tenancy, there should be imposed an
equitable tenancy in common in unequal shares in proportion to their occupancy
of the floor.

2.4.2 Severance during lifetime and at death

The distinctive feature of a tenancy in common is that each share of each tenant in
common can be separated and transferred during lifetime, and also by will or
intestacy, so that the survivor never acquires any more than his or her original share,
which is, of course, quite different from joint tenancy.
Such severance should not, however, be undertaken unilaterally, unless, perhaps, the
property is all of the same quality and value. Usually, severance should be undertaken
with the agreement of the other tenants in common, or in accordance with an order of
a court of equity. If it is not done in these ways, there is a danger that there will be
trespass or conversion.

2.4.3 Court powers to regulate severance

In Cook Islands, Fiji, Kiribati, Niue, Samoa, Solomon Islands, Tuvalu, and Vanuatu,
legislation is in force which expressly authorises courts to make orders to sever

Topic 3: Successive and shared rights and interests in property 3.16

personal property: s143(1) Property Law Act 1952(NZ); s122 Property Law Act Cap
130 (Fiji); s188(1) Law of Property Act 1925 (UK). The powers under this legislation
should always be used if a severance of a tenancy in common is desired, in order to
avoid dispute and conflict between the tenants in common and/or their families.

2.5 Shared rights under customary law

Customary law in island countries of the South Pacific recognises a form of shared
rights to real property which is different from both the joint tenancy and the tenancy
in common recognised by English and American common law. Under most forms of
customary law, land is regarded as owned by all the members of the landowning unit,
and allocated for occupation by the chiefs and elders, but are not transferable,
devisable or inheritable by any individual member of the landowning unit.
Community ownership of land is thus neither joint tenancy nor tenancy in common,
as understood by English and American common law.
In practice, however, frequently separate portions of customary land are claimed by
individual members of the landowning unit, and are transferred to persons outside the
unit, sometimes by the chief himself, sometimes with the consent of the chiefs and
elders, sometimes without the consent of the chiefs and elders.

2.6 Physical intermixing of property

Where several different forms of personal property are mixed together they may
result in a sharing of the intermixture, or they may not.

2.6.1 Separable elements

If the various things that have been mixed are different and can be identified and
separated, what is described in Latin as commixtio, then each can be restored to their
respective owner, eg mixing of oranges and lemons. There is then no need for any
sharing.

2.6.2 Inseparable mixture

Where several different forms of personal property are mixed together but cannot be
identified and separated, what is described in Latin as confusio, eg mixing of oranges
and oranges, or mixing of lemons and lemons, then the owner of each constituent
element is regarded as a tenant in common with the owners of the other constituent
elements and has a share in the whole in proportion to his or her contribution:
 Gill & Duffus (Liverpool) Ltd v Scruttons Ltd [1953] 1 WLR 1407—A ship
arrived with a cargo in the hold of bags of chestnuts marked for three different
consignees. Some of the bags had burst and there was a quantity of loose
chestnuts rolling around in the hold. The High Court of England held that these
should be apportioned amongst the three consignees in proportion to the
difference between the bags actually received by each consignee, and the bags
which should have been received according to the bill of lading.
 Coleman v Harvey [1989] NZLR 723—A silver merchant agreed that a company
could melt down some of his silver coins together with some silver supplied by
the company to make silver ingots for sale. Before the smelting process was
completed the company went into liquidation. The Court of Appeal of New
Zealand held that the silver merchant had a share of the ingots proportionate to
the value of the silver coins that he had supplied.

Topic 3: Successive and shared rights and interests in property 3.17

 Accordingly if there is any shortfall, that shortfall also must be borne in
proportion to their contributions.

2.6.3 Intermixture caused by wrongdoing

At one time it was thought that if the intermixture was caused by the wrongful act or
default of the owners of one of the elements that was mixed, that person must forfeit
all or part of his or her share if there was a shortfall. More recently it has been held
that the wrongdoer responsible for an intermixture can take his or her share in
proportion to his or her contribution to the intermixture, but must compensate for any
shortfall:
 Indian Oil Corporation v Greenstone Shipping SA [1988] 1 QB 345—The crew
of a vessel carrying Russian crude oil from Russia to India carelessly mixed
some crude oil from an earlier consignment of the vessel with the Russian crude
oil. The consignee of the Russian crude oil claimed to receive the entire mixture
of crude oil.
The High Court held that the mixed crude oil was held by the consignee and the
owners of the vessel as tenants in common, each receiving an amount equal to
what each contributed, and that any doubt as to the quantity should be resolved
in favour of the consignee. In addition, the consignee was held entitled to claim
damages for any loss it had suffered in quality or quantity.

SUMMARY

This topic looked at issues concerning successive rights and interests—future rights
and interests, rights and interests in expectancy; shared rights and interests in
property; physical intermixture.

Topic 3: Successive and shared rights and interests in property 3.18

KEY TERMS
Rights in reversion
Rights in remainder
Rules against perpetuities
Life or lives in being
Gestation period
Join tenancy
Tenancy in common
Physical Intermixture

REVIEW QUESTIONS

1. When does a right in reversion arise?

2. Why was the Rule against perpetuities developed?
3. What are some of the statutory modifications of the Rule against perpetuities?
4. What is the advantage and disadvantage of a joint tenancy or tenancy in
common?

Topic 3: Successive and shared rights and interests in property 3.19