Wednesday, June 11, 2008

Co-ownership : Real Estate in Jamaica

Recently I had to deal with a situation where property was held by two people as tenants-in-common. They both died and it created some problems because the estates of both deceased proprietors had to be administered in order for the property to be sold.

Where property is held by more than one person they hold it mainly as joint tenants or tenants-in-common. Some people don't know the difference between the two and make uninformed choices or don't choose at all and "end up" holding it based on the whim of one of the owners or an adviser who did not advise.

Joint Tenancy

This is a rather intimate style of ownership. For this kind of co-ownership has what is called the four unities ie. unity of possession, unity of time, unity of title and unity of interest. The effect of this is that each co-owner is equally entitled to possess any part of the property, each acquires his interest at the same time and under the same document of title and each has the same interest in the land, in other words each joint owner owns the whole property. Out of this comes the primary, distinguishing characteristic of a joint tenancy: the right of survivorship. This right is simply that on the death of one joint owner the survivor(s) take the interest of the deceased. So the interest of the deceased does not pass under his will or an intestacy.

Tenancy-in-Common

In this scenario each co-owner has a distinct share in the property which has not yet been divided. So one says they hold property in undivided shares. The only necessary unity is possession. Each tenant is entitled to possess any part of the property since one can't point to which part is his share but they may hold 50% each or 60% to 40% or 30% to 30% to 40% and so on. In this case you will appreaciate that there is no right to survivorship. So when one co-owner dies his interest devolves according to his will or the laws of intestacy.

In light of the above you can understand why there is a presumption in law in favour of a joint tenancy. It makes it easier to manage. As you will appreciate if there are say three (3) co-owners and one (1) dies then the other two (2) become the owners of the deceased's interest. All that is necessary is for the death of the deceased joint owner to be noted on the title. In the case of a tenancy in common the deceased person's Will would have to be probated or a grant of letters of administration obtained if he died without a will (intestate) so that his heirs could inherit his share in the property. This can lead to significant fractions of interest in properties, delays, confusion and difficulties in conveyance.

One can understand however why some persons may wish to own distinct interest in land separate from their co-owner especially if they are concerned that they might die subsequent to their co-owner and they wish to leave something for their children in whom their co-owner may not be interested.

It is worthy to note that a joint tenancy can be severed and the same property can then be held by the same co-owners as tenants-in-common; moreover and we won't go into detail with this but even though you own property as joint tenants in law, you may hold as tenants-in-common in equity.

2 comments:

Ann (MobayDP) said...

The recently passed The Property (Rights of Spouses) Act should also be considered when spouses are deciding whether to hold land as Joint tenants or as tenants in common.


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