Co-ownership: Joint Tenancy and Tenancy in Common – Trinidad Law

 


Co-ownership

Co-ownership arises when two or more people hold an interest in land at the same time. There are two types of co-ownership; joint tenancy and a tenancy in common. The type of own­er­ship de­ter­mines the rights of the par­ties to sell their in­ter­est in the prop­er­ty to oth­ers, to will the prop­er­ty to their ben­e­fi­cia­ries, or to sep­a­rate their joint own­er­ship of the prop­er­ty.

Joint Tenancy

Joint tenants hold property equally, constituting a single unit of ownership. The author of Commonwealth Caribbean Property Law 2nd Edition at page 117 states that a joint tenancy occurs where land is conveyed or devised to two or more persons without ‘words of severance’ such as “to AB and CD as joint ten­ants” or “to AB and CD joint­ly.”

For a joint tenancy to exist what is known as the four unities must all be present. They are the unities of possession, interest, title and time. What this simply means is that each joint tenant has equal rights to possess any part of the land, each joint tenant has interests which are identical as it pertains to the whole land, each joint tenant has derived his/her title from the same conveyance and each joint tenant must have acquired his/her possession, interest and title at the same time.

Jus accrescendi / Survivorship 

The ordinary course of events upon the death of a joint tenant is that the principle of survivorship or jus acresendi takes effect. The effect of this is that when one joint tenant dies, his interest in the property devolves unto the other surviving tenants. If there were more than two, the survivors continue to hold as joint tenants. If there were only two joint tenants, the survivor is now seised and possessed of the whole.

Severing the Joint Tenancy

The right of each joint tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under jus accrescendi. Each one is at liberty to dispose of his own interest in such a manner as to survivorship and one joint owner severing his share will not affect the way the land is held as between the remaining joint tenants. Furthermore, severance can only be effected inter vivos (during one’s lifetime). Thus a joint tenant’s share or interest cannot be passed on via a will.

When severance occurs, it separates off a distinct beneficial share for the severing joint tenant. In the absence of any contrary court order or agreement between the co-owners, this share is quantified on the basis of equality between the joint tenants, irrespective of the relative proportions of their original contributions to the purchase of the co-owned land.

Severance by Written Notice

Section 36(2) of the Law of Property Act 1925 (UK) provided a statutory method of severance, by a joint tenant giving notice in writing to the other joint tenants of his desire to sever.

This method has not been introduced in Caribbean Commonwealth jurisdictions except in Barbados and Belize.

Severance under Williams v Hensman

In the case of Williams v Hensman [1861] 70 ER 862 at 867, Page Wood VC highlighted three circumstances in which a joint tenancy can be severed.

“In the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share.

Secondly, a joint tenancy may be severed by mutual agreement.

And in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.”

Useful Cases:

In the Jamaican case of Gamble v Hankle [1990] 27 JLR 115, a husband and wife were joint proprietors of a portion of land. The husband before his death purported to convey the land by deed of gift to a third party which was challenged by his wife. The Court held that the deed of gift had indeed effected a severance of the joint tenancy between the two. The Court went on the say that the deed of gift was an act which fell within the parameters of the first of the three methods laid down by Page Wood VC in Williams v Hensman (supra).

In Derby v Townsend (2006) Supreme Court, Jamaica, No 000974 of 2005 (unreported) [Carilaw JM 2006 SC 93].it was held that where registered land was owned by spouses as joint tenants, the execution of an instrument of transfer by one spouse had severed the joint tenancy.

“Gray, Elements of Land Law, 1987, London: Butterworths”, p 329: Severance may occur where joint tenants of family land build and occupy different houses on defined portions of the land, as such conduct shows an intention to hold as tenants in common: Seunath v Seunath (1990) 1 TTLR 437, at 444, per Gopeesingh J.

In Quigley v Masterson [2012] 1 All ER 1224 , an application to Court of Protection for permission to put jointly owned property on the market with a view to sale, held an effective notice of severance within S 36(2) Law of Property Act 1925.

York v Stone (1709) 91 ER 146 : Where the title of land is registered under a Torrens system, a mortgage of the land does not sever a joint tenancy since a mortgage of registered land operates as a mere security without any transfer or grant of an interest to the mortgagee.

Partition or Sale

In Commonwealth Caribbean Property Law, Gilbert Kodilinye wrote that co-owners, whether joint tenants or tenants in common, may agree voluntarily to put an end to the co-ownership by dividing up the property into separate parcels, each former co-owner henceforth becoming a single owner of his parcel. This process is called ‘partition’.

In most Commonwealth Caribbean jurisdictions, co-owners can apply to the High Court (or Supreme Court) for an order for partition or, alternatively, for an order of sale, the effect of which will be that each co-owner will obtain a precise share out of the proceeds of sale.

In the absence of an agreement, partition always requires an application to the court: Thomspon v M’Latamou ((1989) Supreme Court, The Bahamas, No 1187 of 1986 (unreported) [Carilaw BS 1989 SC 93], per Smith J.

It was held in Mums Inc v Cayman Capital Trust [1988-89] CILR 485, Grant Court, Cayman Islands, per Harre J, that by virtue of Section 100 of the Registered Land Law (Law 21 of 1971, revised 1976) dispositions of land held under joint tenancy are not permitted without the concurrence of all the joint tenants, so that the court had no power to order a partition or sale of jointly owned property to satisfy a judgment debt.

Where one co-owner spends his money for the improvement of the property enjoyed by him in common with another co-owner, the value of the individual shares of each tenant in common will increase, but the proportion in which they hold their respective shares remains constant. The co-owner who has effected improvements cannot recover from the other co-owner(s) a proportionate part of the cost, but if the tenancy in common is brought to an end by partition, he may have a lien for the amount by which he increased the value of the share(s) of the other tenant(s) in common: Patten v Edwards (1996) 33 JLR 475, Court of Appeal, Jamaica.

Ten­an­cy in Com­mon

Where co-own­ers own prop­er­ty as ten­ants in com­mon, each own­er has a sep­a­rate and dis­tinct share of the prop­er­ty. Ten­ants in com­mon have no right of sur­vivor­ship, mean­ing that if one joint own­er dies, that own­er’s share in the prop­er­ty will be part of his or her es­tate and pass by ei­ther a will, or by the law of in­tes­ta­cy. Al­so, as each joint own­er has a share in the prop­er­ty, they may, in the ab­sence of any re­stric­tion agreed to be­tween the joint own­ers, sell or oth­er­wise deal with their share in the prop­er­ty (eg. mort­gage it) dur­ing their life­time, like any oth­er per­son­al in­ter­est.

Joint ten­an­cy is pre­sumed un­less there are words in­di­cat­ing ten­ants in com­mon. It can al­so be clear­ly stat­ed by us­ing words such as “to AB and CD in equal shares” or “AB and CD as ten­ants in com­mon.”

The share of each ten­ant is de­cid­ed by the law in one of four ways:

Deed or Will: “To AB one quar­ter un­di­vid­ed share and to CD three quar­ter un­di­vid­ed share”;

Agree­ment: Any agree­ment be­tween the own­ers as to their in­di­vid­ual share;

Con­tri­bu­tions: The con­tri­bu­tion to the de­posit (if any) can de­ter­mine the share a per­son holds;

Eq­ui­ty: This is work done im­prov­ing the prop­er­ty and in­creas­ing its val­ue; but this must be more than gen­er­al main­te­nance and dec­o­ra­tion – it must be some­thing out of the or­di­nary, go­ing be­yond what would nor­mal­ly be ex­pect­ed of a co-own­er such as adding a room to a house or chang­ing a roof.

Break­ing a ten­an­cy in com­mon

The shares can be changed by agree­ment. This must be in the form of a deed.

 

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