Joint ownership of property is the situation where the same group of people own the legal title to a particular property and also own all the beneficial interests in that property. For instance, two or more people may decide to contribute money and buy property together. It can also be seen when a person decides to give his/her property as a gift to two or more people.
Properties obtained in this regard or circumstances may be held in two alternative ways.
- Joint Tenancy, or
- Tenancy in Common
A joint tenancy is a different form of concurrent ownership where the tenant (owner) enjoys the right of survivorship.
The right of survivorship provides that in the event that one of the co-tenants (co-owner) dies, his/her right to the property automatically transfers to the surviving co-tenants (co-owners). This arrangement effectively precludes the deceased co-tenant’s heir or estate from receiving any of the property’s interests.
Features of joint tenancy:
- The four unities – one of the distinguishing features of every joint tenancy is called “the four unities”. The four unities are;
- Time– each owner must receive title at the same time.
- Title– each owner receives title on the same deed or document evidencing title.
- Interest– each owner receives the same proportionate and equal share of ownership.
- Possession– each owner has the identical right of possession.
2. Right of survivorship for owners – joint tenancy creates the right of survivorship among the co-tenants (co-owners). In other words, a co-tenant has the right to assume full ownership of the property on the death of the co-tenant. When one owner dies, that person’s share immediately passes to the other owners in equal shares, without going through probate. This means that joint tenants equally share ownership during their lifetimes but when one joint tenant dies, his or her interest ends. The title that was held by the deceased person passes automatically to the surviving joint owners, not to the heirs of the deceased person or their relatives or persons named in his or her Will or Trust. The right of survivorship continues until the sole survivor owns all of the property.
3. Equal liability and rights – Under joint ownership or joint tenancy, all parties together own the whole of the property as one legal person and are each entitled to an equal, undivided right in the property and its proceeds of sale. They are equally responsible for any liability arising out of its ownership. Joint tenancy with right of survivorship is a form of shared ownership.
4. Consensus before change of ownership – Property held in joint tenancy can only be sold with the consent of all the joint tenants. A co-tenant (co-owner) cannot sell the property without approval from other co-tenants (co-owners). There must be an agreement to sell among the co-owners. All parties must sign the sale documents before the property can be effectively sold.
Advantages of joint tenancy:
- The biggest advantage of joint tenancy is that the surviving tenant (owner) inherits the property regardless of whether the deceased left a Will or died intestate.
- Joint tenancy can help avoid probate, which is a lengthy and costly process that may result in survivors struggling to establish their claim. Every Will is thoroughly reviewed by a probate court. In case a person dies without a Will (intestate), the process of obtaining letters of administration is even more cumbersome. Joint tenancy helps people avoid the pitfalls of the probate process.
- Another feature is equal responsibility towards discharging loans that have been procured using the property that is held under joint tenancy, as collateral.
|Disadvantages of joint tenancy:|
- Creditors and Debts
Property that is owned in joint tenancy is subject to being attached by the creditors of either of the joint owners. An example is where a parent has named one of his children as a joint owner of a bank account or other property. This is usually done for convenience in the event of incapacitation on the part of the parent or to avoid probate. It is important to realize that the child’s creditors can attach this property regardless of whether the child contributed any part of the joint property. A creditor could then force a sale of the property to satisfy the debt.
2. Unintended Estate Planning Consequences
Placing property in joint tenancy may disinherit children or others since property held in joint tenancy passes to the survivor regardless of what the deceased joint tenant’s Will or Trust directs and regardless of whom the decedent’s heirs are under the law. Usually, it is a person’s intent to leave their property to their spouse and then to their children. Sadly, most people do not know that joint tenancy provides no means of ensuring some of these intentions.
TENANCY IN COMMON
Tenancy in common is one of the ways to hold title or to own property by two or more individuals.
There is no limit to the number of individuals who can hold title to one piece of real estate. A property held by tenants in common can be owned by two to a hundred owners. Each owner holds a share of the property that is separate and distinct from shares held by other owners. The interest in the property does not have to be equal.
People who have tenancy in common are able to do what they like with their share of the property without obtaining consensus or approval from other owners. Tenancy in common owners can mortgage their interest in the property without affecting the interest of other owners.
Unlike joint tenancy, there is no right of survivorship for owners. The interest of the deceased owner survives his/her estate. The surviving owners cannot claim the rest of the property upon the death of any owner. The interest of any deceased owner devolves to his/her designated estate.
Features of tenancy in common
- Typically, the tenants (owners) usually execute a tenancy in common agreement that sets out the percentage of ownership for each party and other relevant matters.
- Each tenant is able to sell his or her shares separately.
- Unlike joint tenancy, tenancy in common does not involve the right of survivorship. This means that in tenancy in common, each tenant’s interest does not pass to the other tenants (owners) upon death.
- Each tenant can bequest his or her interest by Will and if there is no Will, the interest passes by applicable law.
- No matter what the ownership percentage of the tenants, all tenants in common have the right to possess and access the property.
- The tenants are each responsible for the mortgage, taxes, maintenance, and other necessary expenses. But these costs are apportioned based on the percentage of ownership.
Advantages of tenancy in common
- Tenancy in common can be created relatively easily through a simple written agreement. Similarly, the tenancy can be terminated readily in one of several manners below-
- By the tenants agreeing to sell or gift their shares to one of the tenants (owners).
- Partition order from the court.
- By way of ouster. Ouster is the wrongful dispossession or exclusion of a person entitled to possession of property.
2. Each tenant is free to sell his or her interest to someone outside the tenancy. That purchaser would then join the tenancy in common. The individual percentage of the tenant’s (owner’s) contribution to the purchase price can be reflected in the ownership.
Disadvantages of Tenancy in common
- Because each tenant’s interest can be passed on to their heirs, the remaining tenants may be forced to continue ownership with an undesired party.
- An heir might want to sell the property when the other tenants are not ready to sell. A tenant’s (owner’s) sale of his or her interest to an outside party might also result in an unwelcome tenant in common.
- If the tenants (owners) cannot agree on whom to sell the property to, there could be problems. In all of these situations, the tenants would need to turn to the court in a partition action. A partition action involves asking the court to sell the property to anyone and divide the proceeds among the tenants. It might result in one of the tenants (owners) buying the shares of the other tenants. In some cases, such as vacant land, it might be possible to divide the property, giving each tenant (owner) his or her own piece. In any case, partition actions are frequently lengthy, unpleasant, and expensive.
Joint ownership of property is complex in nature because it involves two or more people coming together to own properties as joint owners or owners in common.
It is worthy to note that joint ownership is not about real or original owners alone. It can subsequently involve other joint holders in the future. Thus, it is pertinent to consider these implications when investing in joint ownership or when drafting Wills. People should be educated on the differences between these types of joint ownership so as to guide them, particularly in their Wills.
It is advisable to create tenancy in common because it protects the interest of each tenant (owner) unlike joint tenancy. Each tenant (owner) holds his/her own separate interest in the common property. When considering tenancy in common as a form of ownership, intending tenants (owners) should consider all the implications and obtain advice from knowledgeable professionals.
Author: Stella C. Nwanne