Sunday, 26 September 2010

Co-Ownership of Land: Joint Tenancy

Q: I'd like to purchase some land with my boyfriend, are there any things you think I should be aware of?

A: I'll answer this question in two parts: Joint Tenancy and Tenancy in Common.

Jus Accrescendi (the right of survivorship) is the most important difference between a Joint Tenancy (JT) and a Tenancy in Common (TC). Survivorship means that when a Joint Tenant dies, his/her heirs have no claim in the property because the property is left for the surviving joint tenants ONLY. This is because of the Four Unities concept that is essential to show interests in land.

The Four Unities:
Time - Interest of each co-owner must be acquired at the SAME time.

Interest - Each co-owner must plan to have interest for the same extent, nature and duration.

Title - Each co-owner must have derived ownership from the same document... ONE deed.

Possession - The land must not be divided. Each co-owner must be equally entitled to the whole of the property.

If the Four Unities are not all present, the interest cannot be held as joint tenants, but may be held as tenants in common, provided that there is unity of possession.

Severing a Joint Tenancy
In Trinidad and Tobago a Joint Tenancy can be severed (ended) in three ways, identified by Page-Wood V-C in Williams v Hensman (1861) 1 John & H. 546, 557-558; 70 ER at p. 867. It must be a present -not future- intention to sever.

1. Acting upon one’s share (alienation) -
This method involves destroying one of the four unities: possession, interest, title or time. The standard way to do so was unilaterally to assign one’s interest to trustees, or to sell or mortgage one’s interest.

2. A joint tenancy may be severed by mutual agreement by all co-owners.

3. 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.

74 comments:

Julie Kelly DipSw. BA (Hons) Social Work (Manager & Founder of Kelly's Corner) said...

Hi
I found your blog whilst looking for people who are also passionate about Human Rights. I must say that I found your views most interesting and it is a real pleasure to read work that has been written with passion.
The problem today is that people dont have anything that they are willing to stand up for and your blog was totally refreshing. Thank you so much. If possible I would like to become a follower of your blog and maybe you could check mine out. Thanks Julie

end of tenancy clean said...

It's good to know your rights. What is bothering me when it comes to Joint Tenancy is that I'm not sure in the sustainability of the good relationships. You never know what will you feel towards somebody after 20 years for example.

Trinbago Rights said...

That's true. It's always a risk purchasing property with someone else, even if you've known them for years... because the past does not represent the future.

Anonymous said...

so if property is 'devise and bequeat' unto one person 'for their natural life' and 'thereafter' 'devise and bequeat' unto 3 persons in equal shares..... who has first right to the property 1) the first party or 2)the 3 parties under a tenancy in common. or 3) all equal

Trinbago Rights said...

Give me some more details. Are you referring to intestacy rules?

http://trinidadandtobagolegalrights.blogspot.com/2010/07/intestacy-rules-in-trinidad-and-tobago.html

Anonymous said...

I understand to a certain degree the "joint tenancy" four unities concept. My question is what if some of the tenants can never use the property. Would #2 of the four unities "Interest - Each co-owner must plan to have interest for the same extent, nature and duration." apply. I would like a simplified explanation of what it means, if possible

Anonymous said...

Hello!
Please explain a little further in layman's terms the following:
"Interest - Each co-owner must plan to have interest for the same extent, nature and duration"
There are several names on the deed and some are unable to use the property
Many thanks

Trinbago Rights said...

Firstly, Joint Tenancy is not applicable if there are "several names".

Joint Tenancy can have a maximum of 4 owners.

Anonymous said...

Hi.

"Joint tenancy can have a maximum of 4 owners."

Is this a fact? How can this be true if the four unities are present and there are 6 co-owners? Please explain further.

Trinbago Rights said...

The maximum number of persons able to hold a joint interest in land is 4, according to Section 34 of the UK Trustees Act 1924, which Trinbago follows.

Where there are more than 4 joint tenants (trustees) of a piece of land, the first four named trustees of full age will be classed as the trustees of the land, holding the land/property on trust for all the joint tenants, including those who are not named as trustees.

That may be a bit confusing for you if you don't understand the terms, but there is another possibility of your situation being a Tenancy in Common.

Anonymous said...

Thanks for clearing that up! I thought that Trinidad and Tobago followed the Trustee Ordinance 1950? though.

Trinbago Rights said...

That Ordinance was repealed by the Trustee Act 1981, but for some reason, the Act is still in limbo. That's a paragon of third world governance.

Trinbago's legal system is largely based on the UK system, so don't be surprised if UK legislation takes precedent.

Anonymous said...

Thanks again!! Right you are re: "That's a paragon ... governance."

Anonymous said...

Hello
If there is a deed and a will, does the will HAVE to go to probate?
Also, what is the probate fee? and, can I download an application form and do it myself?
What is the timeframe for filing an application?
Thank you!

Anonymous said...

Hello
If a will has only ONE witness should it still go to probate?
It is a LAST WILL AND TESTAMENT typed on legal paper and signed by a legal secretary...ONE WITNESS plus the testator's signature and date, 2002.
Thank you!

Trinbago Rights said...

A Will must be made in the presence of at least 2 witnesses.

Anonymous said...

hi,who have more rights to the land? someone who have a deed and will for the land or someone who have a receipt stating he paid money for it,which is not the full amount of the land.and claiming under RPO rights.both parties are there on the land for more than 30 years.thanks

Anonymous said...

Divorce,over 10yrs, all properties are owned joint tenants from previous marriage....can i assigned my shares to my married wife and child

Anonymous said...

Can a joint tenant leave his portion for anyonelse eg like his brother or nephew? in a will

Anonymous said...

Hi,I have a question about a situation. Joint tenancy has two owners A and B. Owner A did a memorandum of gift to me but while this was processing, he got ill and eventually died. Owner B did not know about this and he sold the land. What are my options here?

Anna said...

I inherited a joint tenancy with my brother, it is a single dwelling and cannot be subdivided.
He wants to sell the property for less than the valuation(Raymond and Pierre) by 300K as he is pressed for funds.I am not pressed and would like to get the best offer I can. He is now threatening to sell his 50% to a buyer who is not a family member, and has a family. Can I stop him in court as this is not in my best interest since I will not be able to occupy the property if he sells it.

Anonymous said...

can a property be sold if jointly owned but one pardner is unwilling and the other whats it sold due relationship breakdown and needs the equity from their share

Trinbago Rights said...

No, but you can sell your share.

Anonymous said...

How do you know what your share is? Lets assume its an acre on the mainroad...and the half nearer to the mainroad is more valuable than the half behind it. Who's to say where the half is split?

Trinbago Rights said...

There's no separation with Joint Tenancy. It's a SINGLE COLLECTIVE owner, i.e., each owner is entitled to all of the land; there is no division.

When I say you can sell your "share", you can sell you share of interest in the land, not the land itself.

Anonymous said...

I am very pleased with your Blog.I am a Land Surveyor also doing my LLB. I came across your site while doing some research for an easy explanation for a client.Your Joint Tenant Q and A was very informative.

Anonymous said...

Hi.i understand in joint tenancy, when one tenant dies, it goes to the survivors,and not the children. But what if the children continued occupation with the knowledge of the other tenants, but the tenants now decide to sever the tenancy,are the children of the deceased entitled to any claims(altho they occupied on the land for 25 yrs when the father was alive?)

Anonymous said...

i am part owner of a piece of property (1 lot)in joint tenants father,brother and 4 siblings,my father and siblings went to Canada to live in 1988 and I have been living and taking carre of the property since 1992,my father and brother came ack after 23 years of living abroad and is fighting and taking over the area in which I am living and running a business for me to leave and is claiming that they can do that because they own majority shares,can thery do this and who can I go for help,

Shares in UK Property said...

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Delicia Villaroel said...

please tell me what should be my steps to take. My grandmother did a deed before she passed. Its a joint tenancy agreement whereby the property was originally shared into 4parts, she being a holder and then 3parts after her death. Her daughter being a holder on the deed, did another document referred to as a deed of gift whereby her share was given to her son. He only resided on the property for a few years of his life but my mom and I have been here for over 50years and we take care of all the land taxes, care for property etc.

Please advise what is now the valid deed for the property, what rights each holder has and what can I do regarding this matter as we are now occupying the space that she did and her son wants rights. Also, they left their area abandoned for over a year, I spent money for fixtures in order to restore its state.

Please to hear your views as I am not sure where and how to begin with this matter.

Trinbago Rights said...

I always decline interviews because I don't do this for fame, that's why my name isn't anywhere on the site.

This is purely to assist my fellow Trinbagonians.

Trinbago Rights said...

I don't give advice on this website, I only supply information.

This matter is very complicated and requires a consultation to obtain legal advice. You can do this with us or another lawyer; your choice.

bloodstonedkitty said...

Hello, you said that in a tenancy in common if one person mortgages their share only that person is in charge of the mortgage. Can you tell me what act or text book governs this in TT law? Is there an authority that says a tenant in common can mortgage their share without the permission of the other tenants in common?

Anonymous said...

Good-day,

Firstly this is a very informative and well documented blog. There is a need for the general public to understand technical legal jargon and you are doing an excellent job.

With that being said, I have been reading on the subject of joint tenancy. However my father has informed me that in his new apartments, I would be given "living rights" for the entire downstairs which I plan to finish build myself. Furthermore, if he passes away, is there a legal document that states that where I would be living can be passed to my children and their respective children and not simply given back to my step mother and I would not be forcibly removed.

Any other take or information on the situation would be appreciated especially regarding “living rights” or perhaps speaking to him about tenants in common or any other legal action that can be taken.

Thanking you in advance.

Trinbago Rights said...

I will blog about this tonight. Look out for the post

Anonymous said...

My father passed intestate and by probate my mother relinquished her share to both my brother and myself. The deed was processed with us being joint tenants. This was 12 years ago. My brother has not returned to Trinidad in 14 years and is claiming through financial destitution that I should either buy out his share or obtain a valuation for the property, sell and then give him his share of proceeds. He has never contributed to the maintenance and has accused me of living free for the period I occupied the premises. My mother was handicapped and I left my home to reside with and take care of her. She survived my father by fourteen years. Does he have any legal claim in what he is requesting. Thanking you in advance.

Anonymous said...

How is co-ownership of land or property legally documented - through the deed alone or other contractual agreement(s)?

Anonymous said...

Good Morning,
I am seeking advise on a issue that has an ongoing conflict in my family. My husband and I together with my children occupy a three bedroom, concrete and board house with My younger brother-in-law and his wife. I have been married for the past 21 years and lived there to present. On the death of my mother-in-law, five years ago (2009) my brother-in-law and his wife claimed that they are the owners of the house and that we should leave. We were shocked and dismayed by his behavior. We have tried to reason with him but he insist that the house belongs to him. No Will was done by my mother-in-law and we have not seen our landlord in 7 years and calls to her phone have gone unanswered. They travel back and forth to Trinidad from time to time. My brother-in-law together with his wife have left the house since 2011 and lives at another address. He has however blocked portions of the house and comes uninvited and walks through on an quarterly basis to ensure his belongings are not disturbed. My husband does not say anything and is afraid to upset anyone. We are still living at the house but to confined space. I am asking your advice on this matter since we are not financially capable of obtaining a house for ourselves. My husband was always the provider for the family since the death of his father and have not given others the burden of running the house nor paying the utilities. We are still paying all the utilities and up-keeping the house. Could you please advice

Trinbago Rights said...

On the deed, but nothing is wrong with having it documented twice as long as there aren't conflicts.

Trinbago Rights said...

Case law.

Trinbago Rights said...

The children were guests/licensees... no rights.

Anonymous said...

my boy friend father give to his aunt a deed of gift with with live interest what does that means in legal term

Trinbago Rights said...

"Life interest" means until he's dead.

Anonymous said...

Great information. Thank you for sharing your knowledge.

Anonymous said...

I am joint tenant with someone for a piece of land . Both of us would like to add another 2 persons . Can this be done? What is the procedure? Thanks for your information in advance.

Anonymous said...

In a case 2: I am the joint owner with someone (A). I want to transfer my share to my daughter or have her inherit it should I pass away. Can I proceed and what is the process. The person "A" may not agree.

Anonymous said...

Could a power of attorney be revoked? If so what is the process?

Trinbago Rights said...

Of course... same way in which it was done.

Anonymous said...

Hmmmm..well the person who signed the document was not aware of the "real" nature of the document being signed? How to proceed? If the original cannot be retrieved, what is the process?

Trinbago Rights said...

If you can't find the power of attorney deed, we need to do a search using the names to find the registered number. Only then can the deed of revocation be done.

Anonymous said...

If the registration number was found only (not the document)...how to proceed? Thanks

Anonymous said...

The person who has to do the revocation resides in the USA and the property is in T'dad. The person who was given the power of attorney resides in T'dad. Thanks again looking forward to the informative response.

Trinbago Rights said...

Ask that person to send me a private e-mail.

Anonymous said...

at what e-mail address?

Anonymous said...

Hi, I'm so glad I came across this blog. I really don't want to burden you with a whole lot but I just want a slightly better understanding of my situation.

I'm not entirely sure about all the details, but a relative who was a tenant in common with both my parents became estranged and moved out. After a few years of not speaking and of rejecting alleged "court" correspondence, my mom is hearing that the court is supposedly to sell the property which I've Googled to find is called a partition (I think).

But there's another bit of complexity. My dad died without a will in the middle of all this and mom is yet to fully apply for a letter of administration. Does that affect the supposed "partition" at all? Can the court really do this when one of the tenants in common has passed and the letters of administration have not been applied for? Or is there a way to reverse it?

It was my understanding that nothing can be done with the property without letters of administration. As I said, I just want to wrap my head around this.

Thanks a lot for any info you can provide.

Anonymous said...

the person contacted you...needs urgent attention.

Anonymous said...

if there was no will for the estate of a my grandfather and my father was the last living relative and was about to start the application for the letters of administration however he passed away before that was done but did leave a will which included a clause for me to attain anything that should have been entitled to him to be passed on to you etc .. Also in terms of land taxes etc i have been paying and keeping all outstanding bills up to date for numbers of years with respect to my grandfathers estate.. what becomes of my grandfathers estate now.. would i be entitled to it or would it be shared among the remaining grandchildren even though the other children of my grandfather got their share while my grandfather was alive?

Anonymous said...

My two brothers and I are co owners of a house on one lot of land, before my father died he made a will giving me ownership of downstairs, my other brother upstairs and the last brother the back of the house which has building space. I am now being asked to sign a document giving us all equal rights over the entire property. A family dispute that has rendered both parties not on speaking terms with my brother's wife. Assist us on the indications and consequences of this in the future please.

Trinbago Rights said...

You should visit a Lawyer.

Lisa Mohammed said...

Hi

I own a home on state land. Because the land is very hilly I'm at the top of my neighbor home, he now has and issue with the walkway where we both use your get to our home, there is no other way to get to my home but in front of his property. Both lands are state land. What is the best advice

Anonymous said...

I am divorced over 2yrs have been married for 16years we jointly owned our property which also had a tenant to the back my ex husband took the property and agreed to settle amicably which to this day that have not been achieved we are both remarried. He is living with his wife and family on the property he forced the tenant to leave. My question is if I should die God forbid will my husband or family get my share or will ownership be only his. I Will greatly appreciate your response

Anonymous said...

I am divorced over 2yrs have been married for 16years we jointly owned our property which also had a tenant to the back my ex husband took the property and agreed to settle amicably which to this day that have not been achieved we are both remarried. He is living with his wife and family on the property he forced the tenant to leave. My question is if I should die God forbid will my husband or family get my share or will ownership be only his. I Will greatly appreciate your response

Trinbago Rights said...

Why wasn't there a property settlement done at the time of divorce? I believe that should be done to avoid all of these complications in the future.

Anonymous said...

In a joint tenancy, can one of the co owners erect a structure eg. a wall....roadway or even a house without the permission of the other co owners?

Anonymous said...

I would like to know
1.if someone can sell their share in a joint tenancy to someone besides one of the joint tenant.
2. If the joint tenancy is in the form of a deed of conveyance/deed of gift, can another deed of conveyance/deed of gift be made out to someone outside of the joint tenancy?

sexy queen said...

Hi

My aunt also ,y god mother owns a piece of land with her brother as joint tenants.she now wishes to give her share to me by way of gift. would this severe the joint tenancy so make my uncle and i owners now?

Danny.R said...

My dad and his brothers were the lone survivors on a land deed as joint tenants; until his brother died. However his brother had went to a lawyer where he made a document stating his interest is going to his children (in life and after death). Is that possible even as they were joint tenants? And do they have rights to the land?

Danny.R said...

My dad and his brothers were the lone survivors on a land deed as joint tenants; until his brother died. However his brother had went to a lawyer where he made a document stating his interest is going to his children (in life and after death). Is that possible even as they were joint tenants? And do they have rights to the land?

Vikesh Ragbir said...

HEY. My wife's father dies recently and the parcel of land (3acres) was joint tenant with his brother who sold his interest I think to one of their sister, at this time she is telling my wife and her sister that all the land belongs to her since she is the last surviving member.... what avenues do they have to get redress?

sunilramroop ramroop said...

Hi

How many names may be on a deed for a lot and a half of land?

Janeiar Noel Alleyne said...

Hi, how can a land owner go about gifting someone piece of property (land) and what lgal documents can tge individual receive as proof of ownership thereafter.

Trinbago Rights said...

Deed of gift... visit a lawyer.

Antonia said...

my mother purchased a piece of land in joint tenantcy in 1989 with her then common law husband. They separated in 1998 and she had a deed redone in 2000 where she gave unto herself her half share until death and then unto my sister thereafter. She died 4 yrs ago and her common law husband is claiming that the entire lot of land is his. Does my sister have a claim to our mother's share?

Trinbago Rights said...

Not if the relationship wasn't registered.