'Leaving Nothing to Chance'?: Joint Tenancies, The 'Right' of Survivorship and Unilateral Severance

The joint tenancy with its inherent right of survivorship is the most prevalent form of co-ownership in the common law world today. Most couples will be joint tenants of a family home, while relations (such as siblings) who purchase property together may opt for this arrangement. Inter vivos acquisitions aside, the huge intergenerational transfer of wealth within families on death can result in a joint tenancy, and it may also be a convenient estate planning device. The fact that property automatically vests in the surviving joint tenants on death is the reason why many people choose this form of co-ownership. However, there is one serious disadvantage. A joint tenancy is an inflexible form of landholding where relationships sour or family circumstances change over time, and co-owners want their respective `shares' of the property to pass to someone else on death. Where consensual severance is not possible, one joint tenant can sever unilaterally. The latter mechanism is vital in terms of giving effect to the wishes of the severing joint tenant, especially in situations of discord or a breakdown in relations with their fellow co-owners. However, unilateral severance also has serious implications for the non-severing joint tenant(s) who expected to inherit property through survivorship, and can impact significantly on ownership of the home and other family property. This article looks at unilateral severance as a means of subverting the right of survivorship. The focus is on personal and inter-family relationships, and the various legal issues and policy considerations associated with unilateral severance across the common law jurisdictions of Britain, Ireland, Australia, Canada, and New Zealand. It assesses the various methods of effecting unilateral severance and proposes specific measures, as well as considering novel arguments for preventing unilateral severance based on contractual agreements to the contrary and proprietary estoppel.

Crisis Cartels:Non-Economic Values, the Public Interest and Institutional Considerations

This paper considers the use of non-economic considerations in Article 101(3) analysis of industrial restructuring agreements, using the Commission's Decisions in Synthetic Fibres, Stichting Baksteen, and the recent UK Dairy Initiative as examples. I argue that contra to the Commission's recent economics-based approach; there is room for non-economic considerations to be taken into account within the framework of the European Treaties. The competition law issue is whether the provisions of Article 101(3) can save such agreements.
I further argue that there is legal room for non-economic considerations to be considered in evaluating these restructuring agreements, it is not clear who the appropriate arbiter of these considerations should be given the institutional limitations of courts (which have no democratic mandate), specialised competition agencies (which may be too technocratic in focus) and legislatures (which are susceptible to capture by rent-seeking interest groups).