Kinch v Bullard is an important English land law decision dealing with co-ownership of property and the severance of a joint tenancy. The case focuses on whether a notice of severance sent by post is effective even if the sender later changes their mind before the notice is read by the recipient.
The decision is particularly significant because it clarifies how section 36(2) of the Law of Property Act 1925 operates in practice and confirms that certainty, rather than subjective intention, is central to severance by notice.
Background and Context of Kinch v Bullard
In English land law, co-ownership of land may exist either as a joint tenancy or as a tenancy in common. Joint tenancy is characterised by the right of survivorship, under which the surviving co-owner automatically acquires the deceased co-owner’s interest. Severance of a joint tenancy brings an end to this right and converts the ownership into a tenancy in common.
Kinch v Bullard arose in a context where severance had significant consequences for the distribution of property after death. The case required the court to consider whether the act of posting a notice of severance was sufficient to sever a joint tenancy, even if the sender later attempted to withdraw it before it was read.
Facts of Kinch v Bullard Case
The facts in Kinch v Bullard involve Mr and Mrs Johnson, who were beneficial joint tenants of a property. They were in the process of divorcing, and Mrs Johnson was terminally ill. Aware of her situation, Mrs Johnson decided to sever the joint tenancy so that her interest in the property would not pass automatically by survivorship.
Mrs Johnson sent a letter to Mr Johnson by ordinary first-class post stating her intention to sever the joint tenancy. The letter was delivered to Mr Johnson’s address. However, before Mr Johnson could see or read the letter, he suffered a heart attack.
After realising that she was likely to outlive Mr Johnson, Mrs Johnson recognised that the rule of survivorship would operate in her favour if the joint tenancy remained intact. Acting on this realisation, she destroyed the letter she had sent.
Mr Johnson died a few weeks later, and Mrs Johnson died a few months after him. Mr Johnson’s executors, after consulting the beneficiaries, brought a claim against Mrs Johnson’s executors to determine whether the notice sent by Mrs Johnson had effectively severed the joint tenancy.
Legal Issue
The central issue in Kinch v Bullard was whether a notice of severance sent by post is effective under section 36(2) of the Law of Property Act 1925 when the sender changes their mind after posting the notice but before the notice is read by the recipient.
The case therefore required the court to determine whether the effectiveness of a notice of severance depends on the sender’s continuing intention or on the objective act of giving notice.
Relevant Law
Section 36(2) of the Law of Property Act 1925 provides that a joint tenancy may be severed by giving notice in writing to the other joint tenant. The provision does not expressly require proof of the sender’s intention at the time of receipt, nor does it state that the notice must actually be read by the recipient.
The case also touched upon principles relating to notices sent by post and the concept of deemed delivery under common law rules.
Decision of the Court in Kinch v Bullard
In Kinch v Bullard, Neuberger J held that the notice of severance was effective. The joint tenancy had therefore been validly severed, despite Mrs Johnson’s later change of mind and destruction of the letter.
Reasoning in Kinch v Bullard
Neuberger J rejected the argument that the notice was invalid because Mrs Johnson no longer wished to sever the joint tenancy at the relevant time. He held that section 36(2) of the Law of Property Act 1925 does not require the court to investigate the sender’s state of mind after the notice has been sent.
The judge emphasised that the function of section 36(2) is not to invite an inquiry into subjective intention but to determine whether a notice has been given in accordance with the statutory requirement. Once the notice was properly sent and delivered, it took effect as a matter of law.
Neuberger J also relied on policy considerations. He explained that if a notice could be rendered ineffective merely because the sender changed their mind between posting and receipt, this would lead to inconvenience and potential unfairness.
Recipients would be unable to rely confidently on notices they received, as senders could later argue that they had withdrawn their intention before the notice was read.
The judge further observed that it would be unrealistic to expect courts to investigate the sender’s state of mind during the period between posting and receipt of a notice. Such an approach would create uncertainty and undermine the practical operation of notices under section 36(2).
Obiter Dictum
In Kinch v Bullard, Neuberger J made an obiter observation that the outcome might be different if a withdrawal of the notice were communicated before the notice was given or deemed to be given. In this context, he referred to Holwell Securities Ltd v Hughes.
However, the judge made it clear that this was only a tentative view and did not form part of the binding reasoning in the case.