Sunday, 3 October 2010

Co-Ownership of Land: Tenancy in Common

Joint tenancy requires four unities, if those are not ALL satisfied, it becomes a Tenancy in Common.

•Tenants in common can be between two or more persons.

•Ownership can be held in equal shares or unequal shares. For example, John could hold 50% ownership, Mary 25% and Tallulah 25%.

•Co-tenants have the right to possess the property by one tenant or by all the tenants. Tallulah can live in the property by herself or share the property with John and Mary. Neither tenant can exclude the other.

•Upon death, the interest of the deceased co-tenant will pass to the co-tenant's heirs. If Tallulah died, John would still hold 50%, Mary would own 25%, but Tallulah's 25% would pass to whomever she designated in her will.

•To dissolve the tenancy in common, one or more co-tenants can buy out the others.

•The property can be sold and the proceeds distributed equally among the owners.


Creating a tenancy in common
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 eg: “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.

Rights and duties of co-owners
Co-owners, irrespective of the type of tenancy, share certain rights relative to each other and to the property, except to the extent they have modified these rights through an agreement among themselves:
• Right of Access: Each owner has an unrestricted right of access to the property and where one co-owner wrongfully excludes another from making use of the property, the excluded co-owner can bring an action against the other co-owner.
• Right to Rent: Each owner has a right to the profits made from the property. If the property generates income such as rent, each owner is entitled to a pro-rata share of that income.
• Contribution: Each owner has a right of contribution for the costs of owning the property such as property taxes and mortgages on the entire property.
Co-owners do not have any obligation to contribute to any costs of repairing or improving the property so if one co-owner adds a feature that enhances the value of the property, that co-owner has no right to demand that any others share the cost of adding that feature - even if other co-owners reap greater profits from the property because of it.
However, when the property is being divided up, a co-owner is entitled to recover the value added by his or her improvements of the property. Conversely, if the co-owner's "improvements" decrease the value of the property, the co-owner is responsible for the decrease.

28 comments:

Professional Legal Network said...

Nice info able blog. Nice description about Legal rights. Creating a tenancy in common is fully describe in this post. Thanks for sharing.


Professional Legal Network

Anonymous said...

with tenancy in common if one party mortgage the property who is responsible for said mortgage?

Trinbago Rights said...

Only that person.

Anonymous said...

Thank you for this information. It is quite useful as it addresses some burning concerns.

Anonymous said...

Can a person who is residing in the United States but owns land in Trinidad transfer ownership of this land to others who are resident in Trinidad, without returning to Trinidad?

Trinbago Rights said...

Of course. The person simply has to instruct a Lawyer and it will be dealt with.

We can easily do this for you.

Anonymous said...

Thanks very much. I will discuss with parties involved and follow up.

Anonymous said...

What is a trinidad authority for the fact that a co-owner of a tenancy in common may take out a mortgage on their share of the property and be responsible for said share? I have checked on google and do not find cases on the topic

Anonymous said...

I am in a similar situation. I purchase a board house on a lot of land the owners told me I cannot live in house without Land so I paid the cost for 1\2 the Land. I broke down the old house and started to build a concrete structure now family members want to come and tell me they will give me back my money is this fear.

Anonymous said...

Can a co-owner with equal share force or initiate sale of the property which the others do not wish to sell?

Trinbago Rights said...

Of course not... s/he could probably sell his/her share.

Anonymous said...

executor has lost his eyesight can he designate someone to manage the probated land

Anonymous said...

In response to the last question, you said of course not. In every state in the United States as well as in many other countries such as Canada and Scotland, the answer is the opposite as any cotenant -- no matter how small his or her undivided interest -- may initiate a partition action and can request a judge to order a forced, partition sale of the whole property even if all of the other cotenants oppose such a request. This is referred to as partition by sale as opposed to partition in kind which is a physical division of the property among the cotenants. Judges in many states here often order a sale in such circumstances. Is the law in Trinidad and Tobago really different than partition law in almost every other country that recognizes tenancy in common ownership? Can you identify legal treatises that address how partition actions are handled in Trinidad and Tobago? Thank you.

Anonymous said...

Hello, If a deed exists which states that my husband has 1/5 share of land in joint tenancy agreement can the 1/5 share go to his wife or daughter in the for of a will in the event something happens to him.

Trinbago Rights said...

Only a Tenancy in common can be inherited. You need to determine which category it falls under:

http://trinidadandtobagolegalrights.blogspot.com/2010/09/co-ownership-of-land-joint-tenancy.html

Anonymous said...

If there is a deed and it states that the portion of the land belongs to mother A and mother B both mothers passed away however only mother A left a will for her portion to be given to her children in the event of her death. What becomes of mother B share?

Anonymous said...

Hi, I know that there are a lot of leasehold properties for sale in Trinidad and Tobago (townhouses/condos). Many of the leases are 99 year leases. Can you teel me what this means and what happens at the end of the lease term.

Thanks

Trinbago Rights said...

Just like any other lease, you have the opportunity to renew or leave.

Anonymous said...

If the shared land is in the process of being divided and owner 1 wants a utility connection (wasa) however, owner 2 refuses to give permission, What other options other than waiting for property division to finalise does owner 1 have?

Anonymous said...

Can a co-owner use property they have a share in as collateral for a loan or do they need documented permission from all shareholders of the property in Trinidad?

Dimples - said...

Hi I am interested in buying a house which is on leasehold land for 999 years. An evaluator valued the land alone for $350,000.00. Can leasehold land be sold?

Trinbago Rights said...

Yes

distraught said...

Hi i am in a situation where i am a joint tenant with my sister who lives in our mothers home and i live in the property that is joint tenancy with her. i have lived here since i was 13 by myself and grew up and got married and had a daughter. my wife took her inheritance and improved on the house and rented it out. my father(deceased) agreed to this. now the house is completed and rented my sister is now claiming her share and half of the rent, when she has refused to live here (we asked her a long time ago) and the agreement was that i was left in this house and she got the house she currently resides in and everything else from our parents. but now she wants her half of this house.

can you advise

Orneiler said...

Can a Co owner decide to build on the property without talking with the other 2persons who also owns the property?? If they do what can the Co owners do too prevent this from happening? The property is currently on what was rented land..

Kizzy said...

Good day,
IN joint tenancy, what if only one person has been paying land tax etc. for the pass 40 years and did repairs. No interest was shown up until a year ago, what then?

Marisa Joseph said...

I am a tenant in common with my uncle who is now dead he left no will. Can I now apply for his share of the property.

Anonymous said...

Was your Uncle married? Did he have children? Are his parents alive?

Where the intestate (person who left no will) leaves no spouse, no issue (children), no cohabitant and no parent, then his estate shall be distributed to or held on trust for his next of kin living at the time of his death in the following order and manner:

(a) to the brothers and sisters of the whole blood in equal shares;
(b) where there are no brothers or sisters of the whole blood, to the brothers and sisters of the half blood in equal shares;
(c) where there are no brothers and sisters of the whole or half blood to the grandparents of the intestate in equal shares;
(d) where there are no grandparents to the issue of the brothers and sisters of the whole blood..

Searching said...

When a High Court Order gives one undivided half share of the matrimonial home to a person in a divorce, does that create a tenancy in common?