In what circumstances can a liquidator of a landlord disclaim a lease?

The Victorian Court of Appeal handed down its decision in Re Willmott Forests [2012] VSCA 202 on 29 August 2012. 

The case concerned the purported termination of certain leases by liquidators of a landlord by disclaiming them under section 568 of the Corporations Act, 2001. The issue was whether the liquidators could, by disclaimer, not only terminate the tenant's contractual rights under the lease, but also their proprietary rights as tenants. 

In a joint judgment, Warren CJ and Sifris AJA summarised the issue at paragraph 1: 

'The critical question ... is whether a leasehold interest in land is extinguished by the disclaimer of the lease agreement by the liquidator of the lessor. 

In the joint judgment, their Honours held (at paragraph 25): 

By disclaiming the contract, [the landlord] no longer has any contractual rights or liabilities under the contract. It is no longer required to perform its part of the contractual bargain. It does not have to provide the lessee with possession and quiet enjoyment. It follows that the lessee, as the other contracting party, loses its rights and is no longer required to fulfil its obligations. This is because the rights and duties of [the landlord] as lessor and the lessee are reciprocal and interdependent. However, there is a qualification to the extent to which the other parties’ interests or property is affected. It is only affected to the extent necessary to release the company from liability.

In the joint judgment, their Honours held (at paragraph 32):

In our opinion, the continuing and prospective obligation to provide possession and quiet enjoyment is not a fully accrued obligation or liability that cannot be terminated.

The joint judgment held (at paragraph 37) that s568D(1) of the Corporations Act should be given the widest possible meaning and that it included the obligation to provide possession and quiet enjoyment. They reached this conclusion on the basis that:

The section is specifically designed to enable a liquidator 'to cease performing obligations ... to achieve a release of the company in liquidation from its obligations. If [the landlord] is to be relieved of its obligation to provide quiet enjoyment, clearly and in context a liability, the interest of the lessee so far as tenure is concerned is directly related to and underpins such liability. The tenure must go. It is necessary to affect the [tenants'] rights (tenure) in order to release [the landlord] from its liability (possession and quiet enjoyment).

The joint judgment decided (at paragraph 47) there was no reason in principle or policy that the consequences of disclaiming a contract of lease should be treated in a different way to the consequences for termination of a lease by way of acceptance of a repudiation. Their Honours concluded that in both cases, the lease agreement is at an end and what follows is a matter of law, namely termination of the leasehold interest that does not depend in any way on the reason for such termination. 

Their Honours also held that the leasehold interest could not survive the termination of the very document that created it and regulated the tenure of the tenant. At paragraph 58, they held: 

It is this tenure which creates, and is the basis of, the obligation or liability on the part of [the landlord] to provide quiet enjoyment. Section 586D(1) allows the liquidator to terminate this obligation or liability despite its intrusion into the property rights of an innocent party. The evident policy is to permit the loss of these rights in order to enable the company in liquidation to be free of obligations so that it can be wound up without delay for the benefit of its creditors. To compensate, the rights of the affected parties are transmuted into various statutory rights and claims.

Redlich JA agreed (at paragraph 82) that s568D ought to be construed widely. His Honour found:

Save where the terms of the lease provide otherwise, the landlord will ordinarily be obliged to meet various expenses arising from ownership of the freehold to ensure the tenant's undisturbed possession of the land. But 'liability' in the context of s 568D is not to be confined to a financial obligation or immediate financial detriment. There is nothing in s 568D or Div 7 A to suggest that the term liability is not so wide as to include 'a legal obligation or duty.' The term 'liability' has a broad meaning which covers executory obligations in relation to the quiet possession, use and enjoyment of the land into the future. To release the appellants from these obligations it is necessary that the respondents' estates or interests in the leased lands be extinguished at the same time as the contracts. 

This decision will obviously have far-reaching consequences for tenants of insolvent landlords who may suddenly find their business being ejected from premises that have been rented for many years, and in respect of which rent may have been paid in advance for an extended period. 

Whilst the case has been decided in the context of the very broad insolvency provisions of the Corporations Act it represents another example of the expansion of the contractual elements of tenancy law, at the expense of the accrued proprietary rights of tenants.

W G Stark


Hayden Starke Chambers

Are there any cases about the Personal Property Securities Act in 2012?

The Federal Court of Australia recently had to decide what to do about goods that had security interests recorded on the Personal Property Securities Register (PPSR), which were costing the administrators of the group in question substantial rent in order to continue to hold the property.

The decision, by Yates J in Carson, in the matter of Hastie Group Limited (No 3) (2012) APPSR ¶701-001; [2012] FCA 719, is
one of the first decided under the Personal Property Securities Act 2009 (Cth) (PPSA).  

The facts
The administrators were appointed to the 44 companies that comprise the Hastie Group on 28 May 2012.

The administrators’ investigations revealed that the Hastie Group held at the time of their appointment a large number of individual items of plant and equipment at 36 different locations. The estimated total auction value of this plant and equipment was $6.4 million. The maximum auction value of plant and equipment stored at any one location was no more than approximately $855,000. The administrators continued to exercise rights in relation to 19 sites by reason of the existence of plant and equipment at those sites. The costs associated with moving the plant and equipment would be significant. It was the administrators’ view that the cost would exceed the commercial value of the plant and equipment to the companies. From 13 July 2012 the total weekly rental payable with respect to the sites occupied solely by reason of the presence of that plant and equipment was going to be $61,134.26. Other plant and equipment had been consolidated and stored by Grays Auctions.

The administrators were faced with 995 registrations recorded against the Hastie Group on the PPSR. 

They asked the secured parties (lenders, equipment lessors and suppliers of goods on retention of title terms) for further information to assist them to identify the property that was subject to the security interest being claimed. The court noted in its judgment (in paragraph 10):

 Given the level of generality of many of the registrations in the PPSR and the existence of many transitional security interests that are not registered, it has proved extremely difficult for the administrators to rely upon the PPSR for the purpose of identifying property that is subject to third party security interests.

In addition, the administrators placed advertisements in major Australian newspapers and emailed approximately 3,000 creditors, in each case requesting that creditors contact the administrator if they sought to claim an interest in any items currently possessed by the administrators.

A large number of secured parties failed to respond to the administrators. Of those that did respond, many of the responses were of little assistance as they still did not adequately particularise the equipment or the applicable security agreement. As a result, approximately 3,684 items (representing 77% of the items of equipment identified by the administrators) remained unclaimed.

The court granted the administrators' application for directions allowing them to dispose of the equipment, with the proceeds of disposal (after payment of the administrators’ costs of attending to the sale) to be retained for three months. The directions made also provided for the creditors to be notified again of the disposal of the equipment (to afford the creditors an opportunity to claim the proceeds) and, after the three-month period, any remaining proceeds would be distributed in the ordinary course of the administration (ie, the money would be paid to the secured creditors of Hastie Group).


This case is a timely reminder to secured creditors and suppliers who rely on retention of title clauses not only to maintain their secured interests on the PPSR, but to ensure that their contact details on the PPSR are accurate and up to date. The security interest in question should identify, in as much detail as possible, the personal property in which the security interest is claimed.

W G Stark

Hayden Starke Chambers

Can a vendor/developer extend the date for registration of a plan of subdivision?

On 2 August 2012, I posted about a developer's obligation to use its best endeavours to obtain registration of a plan of subdivision as decided in Joseph Street Pty Ltd v Tan [2102] VSCA 113. 

Recently, the Supreme Court of Victoria has considered another contract for an 'off-the-plan' sale in Allen & Ors v Harofam Pty Ltd; Scherman v Harofam Pty Ltd [2012] VSC 402. 

The facts in Allen and Scherman were that 2 separate purchasers bought a property each 'off-the-plan' in a development by contract of sale both dated 20 June 2010. Each contract was expressed to be conditional upon the registration of the plan of subdivision within 2 years and also conferred on the purchasers a right to avoid the contract if the plan was not registered on the relevant date.

Each contract was a prescribed contract within the meaning of s 9AE(2) of the Sale of Land Act 1962 (Vic) (“the Act”), which provides:

9AE. Rescission of prescribed contract

• (2) 
  If the plan of subdivision is not registered within 18 months after the date of the prescribed contract of sale of a lot on that plan of subdivision, or, if the contract specifies another period, before the end of that specified period, the purchaser may, at any time after the expiration of that period but before the plan is so registered, rescind the contract.

Special condition 10.3 of each contract provided:

10.3 Time for Registration of the Plan of Subdivision

If the Plan of Subdivision is not registered within twenty-four (24) months of the Day of Sale or such further time, but such further time to not exceed 6 months, as the vendor may by notice in writing to the Purchaser require in the event that delays occur as a result of any act, matter or thing beyond the reasonable control of the Vendor which directly or indirectly causes the registration of the Plan to be delayed, either party may, at any time after the expiration of this period or such extended period, but before the Plan of Subdivision is registered, rescind the Contract by giving written notice to the other, in which case the deposit, any interest thereon and all other moneys paid by the Purchaser shall be refunded less any bank and government charges, GST and any legal fees for prior default.

As things turned out, the relevant plan of subdivision was not registered as at 19 June 2012 (being 24 months after the day of sale). 

On 19 June 2012, the vendor/developer informed both purchasers by notice that it was purporting to exercise its right to a six month extension to finalise registration of subdivision.

On 21 June 2012 Ms Scherman gave notice of rescission of her contract. 

On 22 June 2012, Ms Allen gave notice of rescission of her contract.

The only question before the court was whether the purchasers were entitled to rescind each contract in all the circumstances.

Warren CJ analysed the law based upon the decision of Bongiorno J in Clifford v Solid Investments Australia Pty Ltd [2009] VSC 223 and the Court of Appeal in Solid Investments Australia Pty Ltd v Clifford [2010] 27 VR 41.

Her Honour's conclusion (at paragraph 20) was that: 

The exercise of the right to nominate another plan registration date, even if limited by special condition 10.3 to a finite range of dates and occasions, does not constitute the nomination of a particular specified date that is, as considered by Bongiorno J in the Clifford matter, “fixed, definite and certain”.

And at paragraph 24, Her Honour noted: 

In my view the present case falls squarely within the principles set out in the decisions in the Clifford matter. In the hearing before me on 22 August 2012, concerning the Allen [purchasers], the [vendor/developer] effectively conceded that should no material distinction between this Condition and the one in the Clifford matter be found, then the purchaser would succeed.

In those circumstances, it is clear that the courts will be reluctant to allow a vendor/developer the opportunity to extend the date for registration of a plan of subdivision beyond the 'fixed, definite and certain' date that is specified in the original off-the-plan contract of sale.

W G Stark

Hayden Starke Chambers

Have the problems migrating charges from ASIC to the PPS Register been fixed?

In the latest PPSR update (July - August 2012), ITSA notes the following matters regarding the migration of charges from the ASIC database to the PPS Register.

First, ASIC has published a list of approximately 6000 charges that were on the ASIC Register of Company Charges but were not migrated to the PPSR due to technical issues arising in the migration. See the ASIC website (www.asic.gov.au) for more details.

The non-migrated charges should be registered on the PPSR before the end of the 24 month transitional period ending in January 2014 to ensure that they remain perfected security interests. If they are registered on the PPSR after the expiration of the transitional period, the start date for priority purposes will be the date of registration.

Secured parties that notify ITSA of registration of those charges on the PPSR may be eligible for a payment in respect of each relevant charge (subject to validation by ITSA). To apply, please read, complete and lodge the form 'Notification of re-registration of non-migrated security interests (including application for payment)' available via the link shown below.

ITSA recommends that secured parties submit notification forms no later than 31 October 2012.

Secondly, Data migration issues – Update

Implementation of the ASIC ACN/ABN data fix (known as CR089) was completed in June. This resulted in changes to 885,238 registrations migrated from the Register of Company Charges, to replace grantors identified on the PPSR by an ABN with the same grantors identified by an Australian Company Number (ACN), where the grantors had both an ABN and an ACN. As noted on the Announcements page at www.ppsr.gov.au, among the registrations affected were 484 registrations that should have had grantors identified by ARBN (not ACN). The majority of the affected grantors are foreign companies, but included is a small set of Australian non-companies (for example, cooperatives) which should be identified by ARBN. A programmatic solution is being developed to substitute ARBN for ACN for the affected entities. This is expected to be implemented at the end of this month. In the meantime, users performing organisational grantor searches by ARBN should consider searching by entering the ARBN of the target grantor entity into both the ACN and ARBN fields on the PPSR.

The online version of the entire newsletter can be accessed at:

http://ppsr.cmail4.com/t/ViewEmail/j/3F7E1E0513DBD135/0C4CF92B4B2F15A2C67FD2F38AC4859C

W G Stark
Hayden Starke Chambers

Are there any recent decisions about the enforcement of forged loan documents?

In  Commonwealth Bank of Australia v Perrin [2011] QSC 274 the Supreme Court of Queensland had to analyse whether a mortgage was enforceable because the wife's signature had been forged.

Facts

This case concerned the Perrin family. The case makes interesting reading – it’s a little like a soap opera.

A twenty something salon owner (the defendant) met a twenty something law student;

They married;

He did articles at Allens;

He then joined the legal practice of his 2 older brothers;

He left private practice and joined Billabong;

He becomes a multi-millionaire on the float of Billabong;

In 2007, their fortune was estimated by BRW at over $120million;

At some point in time, the Perrins demolished the family home (registered in Mrs Perrin’s name and on the Gold Coast in Queensland) bought the block next door and built a ‘larger’ house (said to be worth $10m+);

The facts recited in the judgment also refer to an affair between Mr Perrin, and the fact that Mrs Perrin is apparently now in a relationship with her ex husband’s former lover’s ex husband (in other words, the 2 jilted ex’s got together to console each other);

Unfortunately, Mr Perrin invested badly, and lost a lot of money. He became bankrupt.

The bank sued Mrs Perrin seeking to recover possession of the family home.

The judge found that Mr Perrin forged his wife’s signature on various mortgages over the family home and a guarantee of his indebtedness to the Bank.

Section 185(1A) of the Land Titles Act (Qld) provides:

(1A) A registered proprietor of a lot (the relevant mortgagee) who is recorded in the freehold land register as a mortgagee of the lot or an interest in the lot does not obtain the benefit of section 184 [indefeasibility] for the relevant mortgagee's interest as mortgagee if  

(a) the relevant mortgagee

(i) in relation to the instrument of mortgage or amendment of mortgage, failed to comply with section 11A(2); or

(ii) in relation to a transfer of the instrument of mortgage, failed to comply with section 11B(2); and

(b) the instrument of mortgage or amendment of mortgage was executed other than by the person who was, or who was about to become, the registered proprietor of the lot or the interest in a lot for which the instrument was registered.  

McMurdo J decided because the Bank failed to take reasonable steps to ensure that it was the defendant who executed the mortgages in question, in breach of section 11A of the Land Titles Act 1994, it did not gain indefeasibility for its mortgages. The bank had attempted to avoid the consequences of this provision by saying that the court should only remove its mortgages from the titles in question upon payment of the debts owed to it. That attempt failed.

Section 11A of the Land Titles Act (Qld) provides:

(1) This section applies to

(a) the mortgaging of a lot or an interest in a lot; and

(b) an amendment of a mortgage mentioned in paragraph (a).

(2) Before the instrument of mortgage or amendment of mortgage is lodged for registration, the mortgagee under the instrument (the original mortgagee) must take reasonable steps to ensure the person who executed the instrument as mortgagor is identical with the person who is, or who is about to become, the registered proprietor of the lot or the interest in a lot.

(3) Without limiting subsection (2), the original mortgagee takes reasonable steps under the subsection if the original mortgagee complies with practices included in the manual of land title practice under section 9A(2)(c) for the verification of identification of mortgagors.

(4) The original mortgagee must, for 7 years after the instrument is registered, and whether or not there is registered a transfer of the interest constituted by the mortgage

(a) keep, in the approved form, a written record of the steps taken under subsection (2); or

(b) keep originals or copies of the documents and other evidence provided to or otherwise obtained by the original mortgagee in complying with subsection (2).

Maximum penalty 20 penalty units.

There is no equivalent provision in Victoria to sections 11A and 185(1A). 

Indeed, if the same circumstances arose here, the Bank would not concede that it would not be entitled to rely upon indefeasibility from the registration of its mortgages.

W G Stark
Hayden Starke Chambers

Are there any recent decisions clarifying unconscionable conduct by a mortgagee?

Before the Global Financial Crisis (GFC) in 2008, we may have seen a return to some of the more dubious 1980's lending practices.
 

It seems that subsequent to the GFC there may be a return to 1980's banking and finance litigation (possibly due to harsh economic times).

In Choice Constructions Pty Ltd v Janceski [No 3] [2011] WASC 358, the Supreme Court of Western Australia was called on to look into an allegation of unconscionable conduct by a mortgagee, along the lines of the Garcia and Amadio decisions.  

Facts
The defendants, Mr and Mrs Janceski moved from their native Macedonia to Perth, Australia in the 1970’s. Therefore, they were of a non-English speaking background. Neither husband nor wife had received any formal education in English, and Mrs Janceski had only received formal education to grade 4 level. However, both defendants could read, write and speak a little English. 

They had been involved in a series of property transactions prior to entering into the mortgage with Choice Constructions Pty Ltd. The mortgage in question came about due to their purchase, with their son, of a 3 storey town house developed by the mortgagee as builder/developer. They could not pay the full purchase price, and the vendor agreed to finance their purchase.

In this proceeding, the defendants (representing themselves) claimed that the mortgagee had acted unconscionably, based the principles set out in the High Court decisions of Commercial Bank of Australia v Amadio (1983) 151 CLR 447 and National Australia Bank Limited v Garcia (1998) 194 CLR 395. As a result, they sought a declaration that the mortgage was unenforceable.

Unconscionable conduct
Readers will recall that in Amadio, the High Court held that a contract (the mortgage) will be unenforceable where one party to it is at a special disadvantage and because of that special disadvantage it would be unconscionable for the other party (the bank) to take a benefit from the transaction. 

Garcia took the argument one step further, deciding that it is unconscionable to enforce a guarantee against a married woman (a professional in that case) in circumstances of undue influence. The particular guarantee in that case was to repay her husband’s debts in circumstances where:

1. the wife did not understand the effect of the transaction, and was not receiving a benefit from it;
2. the lender was aware that the wife did not understand the transaction; and
3. the lender did not take steps to ensure that the wife had the transaction explained to her. 

These decisions led to a change in lending practices that resulted in guarantors being required to prove that they had received independent legal advice before entering into the proposed guarantee (by providing an independent solicitor's certificate). 

It seems that before the GFC, some lenders had again taken to lending in dubious (high risk) circumstances, on the basis that it was a rising property market, and the value of the security property being offered would protect the lender against all possible risks. The GFC confirmed how foolhardy that attitude was! 


The decision
Simmonds J ultimately found in favour of the mortgagee/developer, on the basis that the defendants were not at a special disadvantage and that the mortgagee had taken adequate steps to ensure they received appropriate and translated advice.

His Honour made several comments in his decision on the factors relevant to a finding of special disadvantage:

1. whilst age in itself is not a special disadvantage, when combined with other factors it may give rise to a special disadvantage;
2. emotional dependence (here the defendants alleged they were dependent on their son) is often an indicator of special disadvantage but will not amount to special disadvantage without the presence of other factors;
3. a lack of literacy, education or comprehension of the English language are significant factors indicating special disadvantage; and
4. a lack of business knowledge may also be a contributing factor.

His Honour specifically declined to decide whether the Garcia principle extended to the relationship between aged parents and children.

The case ran for over 20 days, and the defendants represented themselves. Those facts alone show the significant cost of this case to the mortgagee. Therefore, the Janceski decision is a reminder to lenders about the importance of ensuring that potential borrowers and especially third party guarantors obtain independent legal advice, and an independent solicitor's certificate about that advice. 

W G Stark
Hayden Starke Chambers

Are there any recent cases on 'Severance of joint tenancies' in August 2012?

On 3 October 2011 and 15 February 2012 I posted blogs about 2 cases where one party sought to sever a joint tenancy and the other party resisted the application. 

On 27 July 2012, Croft J handed down a further decision about the severance of joint tenancies in Mischel v Mischel Holdings Pty Ltd [2012] VSC 292. 

Facts 
The circumstances in that case were that the joint tenants agreed to sever the joint tenancy, and exchanged contracts to that effect; however, before the agreement could be brought into effect, one of the joint tenants died. 

Croft J was called on to determine whether the death of the joint tenant resulted in the agreement being of no effect, due to section 42 of the Transfer of Land Act, 1958 (indefeasibility of title). 

The decision
His Honour noted (at paragraph 38): 
It is well established that the conveyance of property to parties  jointly does not of itself rebut the equitable presumption of a tenancy in common as a conveyance in this form does not identify the beneficial ownership of the conveyees— and the same applies to a transfer of land under the Transfer of Land Act 1958 (Vic).

and at paragraph 39:  
The [joint tenants] enjoyed indefeasible title as joint registered proprietors in fee simple under the provisions of the Transfer of Land Act 1958 (Vic). This position in terms of legal title does not, however, prevent parties agreeing a contrary position ... An agreement of this kind, if recognised in equity as relevant to the state of the title, would eliminate one of the “four unities” — possession.

His Honour then referred (in paragraph 40) to the:

"many authorities of long standing which reaffirm the dislike of joint tenancies in equity because of the arbitrary manner in which the right of survivorship operated. The position in this respect was discussed and reaffirmed by Gibbs CJ in Delehunt v Carmody in the context of a purchase of property where both purchasers contributed equally in the payment of the deposit and the instalments of purchase price:

... Equity had a dislike for joint tenancies, because their effect was to make the ultimate ownership of the property depend on the chance of survivorship, and, in the words of Snell’s Principles of Equity 28th ed (1982), at 37: “There is here no equality except, perhaps, an equality of chance.”

His Honour concluded that an agreement between the deceased before her death and the joint title holder:

"made in circumstances where [the deceased] provided full consideration for the purchase of her half interest in the premises would, in my view, provide a sufficient circumstance to indicate that it was intended that there should not be a joint tenancy because the result of such an agreement would be to eliminate one of the “four unities”, namely, possession.

In dealing with the death of the joint tenant before the contract was completed, His Honour noted (at paragraph 62):

Finally, mention should be made of the fact that [M] died prior to the settlement of the sale of the premises. Whilst the defendant sought to attach some significance to this fact, it does not, in my opinion affect the position argued for by the plaintiff. When an enforceable contract for the sale of land is entered into, the consequence, in equity, is that the purchaser acquires at that time the fee simple estate in equity, the vendor’s interest at the same time being converted into a lien over the land sold for the balance of the purchase price. Consequently, from the perspective of equity, [M]’s death occurred after the beneficial sale of the premises and, consequently, at a time when the agreement to apportion the sale proceeds had come into effect. This position is not affected by the passing of the legal estate in the premises by survivorship on her death because the holder of that estate, the defendant, does so subject to her beneficial interest in the proceeds of sale — now, of course, part of her deceased estate.


Severance of a joint tenancy On the question of severance of a joint tenancy, His Honour noted as follows (at paragraphs 63 and following): 

It is clear that a joint tenancy may be severed by agreement or by conduct. Although severance by conduct has been characterised merely as evidence of an agreement to sever, the “weight of authority supports [the latter] as having an independent existence”.

[64] I turn now, particularly, to severance by agreement. It is clear from the authorities that a joint tenancy may be severed in equity by agreement between all the joint tenants henceforth to hold as tenants in common. This includes a situation where the joint tenants agree that:

• (a) 
  they each hold an equal, one-half share in the property (a moiety); and
• (b) 
  the property is to be sold and the proceeds of sale divided accordingly.

It is the agreement between the parties to “split” their property that is determinative of an intention to sever, as emphasised by the Queensland Court of Appeal in Sprott v Harper.

[65] Equity regards the parties as tenants in common as soon as the agreement to sever is made, even though the legal title remains in them as joint tenants, and even though the agreement contemplates the occurrence of future events. For example, an agreement to sell and divide the proceeds of sale of the property between the joint tenants normally severs the joint tenancy in the absence of the actual sale or division of the proceeds. Thus, Professor Butt observes:

It seems not to matter that the contemplated events might never in fact occur; for example, an agreement between husband and wife joint tenants that each henceforth is entitled to “a one-half” interest in the property severs the joint tenancy immediately, even though the agreement provides for sale of the property only on the remarriage of either of them or on one giving the notice at some future time that a sale is required.

If a co-owner dies before the legal title is altered to reflect the changed status, the beneficial ownership, equity will compel the survivor to hold the deceased’s undivided interest on trust for the persons entitled under the deceased’s will. Where that interest has been sold, the proceeds of sale of that interest will be held on trust for the person beneficially entitled.

 ... 

At paragraph 67 His Honour concludes: 

The weight of authority now indicates, in my view, that an oral agreement to sever a joint tenancy will suffice.

The final decision of the court was that as at the date of her death, [M] was entitled to a half-share of the proceeds of sale of the premises either because she was, at the time she acquired an interest in the premises, a tenant in common in equity as to one-half share, or because any joint tenancy was severed by agreement or conduct prior to her death, with the result that she thereupon became beneficially entitled to the half-share of the proceeds of sale of the premises. 

W G Stark

Hayden Starke Chambers