Introduction
Joint tenants are similar to tenants in common in many ways particularly with regard to their right of possession to a given property. However, there are key differences that a person ought to know before selecting any of the above forms of ownership. This alert will therefore seek to bring clarity on the major elements and key highlights that accompany the two forms.
Joint Tenancy
Joint tenancy has been defined under Section 2 of the Land Act 2012 as a special and concurrent form of ownership by two or more persons having undivided interest in the property. Moreover, one ought to be keen when giving out his property to either a friend or a relative. This is because courts have held where the property has been granted to two or more persons and there are no words in the title document indicating that the registered owners hold separate interests, then that parcel of land is presumed to be a joint tenancy.
Another important aspect on joint tenancy is the fact that there is the recognition of a right of survivor ship. This means that if any one of the joint tenants dies, the remainder of the property is automatically transferred to the surviving owner.
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Four main elements of a Joint Tenancy
1.The joint tenants own an equal and individual interest in the property as a whole
2. The estates of the joint tenants are vested (meaning fixed and unalterable by any condition) for exactly the same period of time
3. The joint tenants hold their property under the same title.
4. The joint tenants all enjoy the same rights until one of them If the joint tenants mutually agree to sell the property, they must equally divide the proceeds of the sale.
Tenancy In Common
In a tenancy in common, the two or more holders hold the property in equal individual shares. Each tenant has a distinct share in the property which has not yet been divided among the co-tenants. In other words they have separate interests only that it remains undivided and they hold the interest together.
Therefore, each tenant has a right to possession of the property as a whole but none of them has a right to exclusive possession of any part of the property. If one of the tenants sell or transfer his or her share of the property to any person, the buyer will soon become a tenant in common with party who did not sell his or her share..
Four main elements of a Tenancy in Common:
1. First an interest in property owned concurrently by two or more persons under an agreement of tenancy in common.
2. Each or two or more of the tenants in common must have an undivided interest in the whole property for the duration of the tenancy (right of possession).
3. There has to be no right of survivorship incident to a tenancy in Further, all decisions to develop, mortgage, sell or use the property may only be made collectively by all co owners.
A HIGHLIGHT OF THE KEY DIFFERENCES
Several features distinguish a joint tenancy from a tenancy in common. A tenant in common may have a larger share of property than the other tenants. The tenant is also free to dispose of his or her share without the restrictive conditions placed on a joint tenancy. In a tenancy in common, no other tenant in common is entitled to receive a share of the property upon a tenant in common’s death; instead, the property goes to the deceased’s heirs.
Conclusion
From the above discussion it is of equal importance to determine the mode of ownership before legal battles ensue in future. Courts have held that joint tenant holds everything and nothing (since the other joint tenant also has a right to the entire property) as it was held in the case of Mukazitoni Josephine vs A.G (2015) Eklr Court of Appeal.
