CO-OWNERSHIP OF PROPERTY BETWEEN TWO PERSONS – PART 1

Smart people purchase and own landed property as a way of investing in the future. Investment in landed property can come in form of residential, commercial or for industrial purposes. The purchase of a land can be owned solely or jointly by two or more people as the case may be. A land can as well be inherited by two persons through a gift or devise in a will or via a grant in a deed or simply when two persons pull resources together to acquire an interest in land.

Co – Ownership is the right to the ownership of a property by more than one person, such that on the death of any of the joint owners, the deceased owner’s portion of the property passes to the surviving owner or owners of the property. The deceased owner’s estate and heirs under a joint ownership structure will receive absolutely nothing. This is not however true in all situation. There could be a circumstance where the portion of the deceased co-owner passes to his survivors or heirs.

The whole idea of co- ownership is just as the name implies, it presumes that each party has a right of ownership in the land and such rights are exercised equally by them on the property. This means that such rights can only be exercised subject to the approval of both or all owners. Depending on the words so used in the instrument, when in any situation one or some of the co-owners passes on, the property may pass to their survivors, or the last surviving co-owner may own the whole property and can sell, mortgage, or pass on the property without restriction.

I will therefore explain further with the help of a simple illustration. Mr. Ogunleye gifted landed property jointly to his two sons, Mr. kehinde and Mr. Taiwo Subsequently, Mr. Kehinde sold the land to a 3rd party without the consent of his brother, (Mr. Taiwo). Mr. Taiwo can institute an action in court, this is because Mr. Kehinde is not the sole owner, he requires the consent of his brother (Mr. Taiwo) to legally and properly transfer ownership to a 3rd party. If Mr. Taiwo dies before Mr. Kehinde, the ownership of the land reverts to Mr. Kehinde. There could however be a situation where if Mr. Taiwo dies, his share or portion goes to his estate or survivors.

How do you determine if a land is jointly owned?

There are two types of co-ownership in law; Joint ownership and Tenancy in common. These two terms are similar to each other. The only difference between them is “words of severance”. Words of severance are clauses like; share and share alike; in equal share; 70 percent and 30 percent etc. The difference between joint ownership and tenancy in common is that in Joint ownership, there are no words of severance while in tenancy in common, there are words of severance. For example, “I Mr. Alaba conveys this land to Abu and Chima” without any further clause, creates a Joint ownership. (Example 2) “I Mr. Alaba convey this land to Abu and Chima in a share of 70 percent to Abu and 30 percent to Chima” creates a Tenancy in common.

The same principle of joint ownership explained above goes for a husband and a wife. It is true that the law and society sees a husband and a wife as one, but this does not usually apply when it comes to property law as per ownership of a property. The authority to sell a property between two persons depends on whether there is sole ownership, tenant in common or the property is jointly owned. There is a limit to which any of the co-owners can dispose of a property. A co-owner cannot dispose of a property that is solely owned by either of them without proper consent from the real owner of the property. The same principle applies when there is a joint tenancy between two persons. There cannot be any partitioning, transfer of property to a third party, or an unequal use of the land without the consent of the other.

The principle of tenancy in common does not imply that the co-owners are perpetually bound to that relationship. If at any time the parties choose to terminate the joint ownership of a particular property, they may voluntarily partition the property where such is allowed under the terms of allocation of the property. The partitioned portion will however go back to the each of the survivors. On the other hand, a party may also apply to a court of law for a partition of a jointly owned land where there has been persistent refusal by one or more of the owners to allow other co-owners to enjoy their rights in the land. Once the partition is settled, the parties are required to execute and register the form of conveyance which is appropriate to the interest they hold. The conveyance in this case is otherwise known as a Deed of Partition.

With this piece of information, it is important for every intending purchaser to conduct with due diligence a proper search and gather all necessary information on a property to ensure that all the necessary approvals have been obtained. This is because the absence of the consent of a co-owner of a property will ultimately affect the validity of the sale. In such cases, the only remedy available to the purchaser will be to institute an action against the vendor to recover the money paid to him.

For further assistance on this subject or any other land matters, do not hesitate to contact me. Call 08034869295 or email me at ibejulekkilawyer@gmail.com