Severance in English Land Law and Turkish Property Law

Eylem APAYDIN

I. Introduction

The aim of this article is to examine the rules on severance in English law by a comparison with Turkish law.¹ English and Turkish legal systems have recognized that types of co-ownership without shares (joint tenancy and co-ownership in common) can be converted to the ones with shares (tenancy in common and co-ownership by shares).² This procedure is named severance, which can be defined as “the process of separating off the share of a joint tenant.”³

Indeed, it is essential to provide a brief explanation on the types of co-ownership in the aforementioned legal systems. Co-ownership is a way of holding title in a property. It is observed that many legal systems recognise two common concepts of concurrent ownership, even though they differ in details. The main distinction between these two general types of co-ownerships⁴ lies in how the legal systems perceive ‘the concept of share’. In this regard, generally while co-owners do not own any share in co-owned properties in the first type, co-owners hold an undivided share in the second type.⁵

Accordingly, two types of co-ownership are observed in English and Turkish law, which correspond to the previous descriptions. Firstly, in English law, joint tenancy is a type of co-ownership where all co-owners hold the whole property as a single entity. A joint tenant as an individual owns nothing, but as an entity, they own the whole property. Secondly, in a tenancy in common, each tenant in common owns an undivided share in the co-owned property. In English law, in fact, there were four different methods by which land could be co-owned which were joint tenancies, tenancies in common, tenancies by entireties, and coparcenary.⁶ However, only the former two categories remain important, as the 1925 legislation abolished the two latter forms of co-ownership. Therefore, the author of this paper legitimately prefers to analyse joint tenancy and tenancy in common.