Land Law
Co-ownership happens when two or more people own the right of ownership in a particular property all at the same time. The law governing co-ownership is a set of rules that deal with the property that is simultaneously owned by more than one individual.
There are different kinds of co-ownership of property such as joint tenancy, tenancy in common and the so-called tenancy by the entirety. If two people who are not married purchased a home, they have the choice of taking the title as joint tenants or tenants in common. The effect of this co-ownership is that there arises multiple owners for only one property. In joint tenancy, the owners own all of the property and their interests cannot be subjected to any division whatsoever. There are some rules and conditions that apply to this kind. The co-owners must first make decisions jointly when it comes to any decision that will affect the property.
For instance, taking out a mortgage in the property is a decision that must be made together by the co-owners. The unique characteristic of a joint tenancy is its right to survivorship. This right means that when one of the co-owners die, the survivor will automatically take over the interest of the one who died. The property will go to the surviving tenant who does not need any evidence to acquire such right over the said property. What he needs is a mere death certificate (The Bahama Journal 2010).
A conveyance of land to two or more persons without words indicating that they are to take as tenants in common, constitutes, at law, a joint tenancy (Chest of Books 2009). The ownership by the co-owners who have the same interest in the entire property can only arise upon the satisfaction of the four conditions (four unities) are satisfied. First, every joint tenant must be entitled to the possession of the property at the same time. Second, the interest of each co-owners in the estate must be identical in such a way that every joint tenant is entitled to the entire property without any exclusive entitlement to any part thereof. Third, every co-owner or joint tenant must have equal or the same title to the land. Their ownership must emanate from the same instrument evidencing such ownership. The fourth requisite is that the interest of each joint tenant must subsist at the same time. The Law of Property Act of 1925 provided a distinction between a legal and equitable joint tenancy. The law provides that when two or more persons have a hold on the legal estate, they hold it as joint tenants, and as such, the right of survivorship applies ( Law Library American Law and Legal Information 2010) . The case of Stack v. Dowden (2007) provides that when the conveyance of the property to them does not contain any word or phrase indicating that they are entitled to the property in undivided shares, they hold it as joint tenants in equity and the right of survivorship will again apply. However, when they take distinct and separate shares, or when the equitable joint tenancy has been terminated. The equitable interest will then be held by them as tenants in common.
Tenancy in common is a little bit different from that of joint tenancy. The law provides that in tenancy in common, the co-owners may own pieces of share that may either be equal or not in the property. When it comes to the aspects of ownership such as the right to sell, one of the co-owners is at liberty to decide to sell his entire share in the property and do whatever he wants with his share. The property is owned by both co-owners as a separate entity from that of the others portion. Both kinds of co-ownership have their own advantages and disadvantages but tenancy in common is the best option if the co-owners are engaged in business because this way, each of the owners have absolute dominion and control over his own share (Strandfeld 2010). Furthermore, Justice Joyce said in Re Wooley (1903) that in case there is an ambiguity in the provisions of the contract, the Court will interpret is as a tenancy in common because if there is a slightest indication that the co-owners have the intention to divide the property, the co-ownership must be bound by the provisions of the tenancy in common.
The problem with co-ownership often arises because the property is owned by people who have different way of dealing with the properties. Aside from the need for protection of a purchaser, there is a need to make sure that the co-owners are enjoying the benefits that they are receiving as a result of having an interest in the property involved. Where one of the co-owners pass his ownership or title to a purchaser in good faith without so much of a notice to the other co-owners , these co-owners may not be able to get the land back from the purchaser. In this case, the purchaser can overreach the limits of his rightful interest in the property. Overreaching is a process wherein the beneficial interests under a particular trust are cleared off the land and attaches to the proceeds for the sale in the hands of a trustee. In this case, the beneficial interests are turned into cash. The remedy of the co-owner is to ask for cash against his other co-owner who sold the property. In case where the co-owners have a tenancy in common, they must make a will because in the absence of a valid will, the assets, including the share in the jointly owned property will pass to the co-owners next of kin (Net Lawman 2010).
In the case at bar, Ben and Amina share a joint tenancy in the Camden Cottage. The law provides that a conveyance of land to two or more persons without words indicating that they are to take as tenants in common, constitutes, at law, a joint tenancy (Chest of Books 2009). Ben and Amina did not stipulate what kind of co-ownership will govern and in the absence of such stipulation, joint tenancy applies. Their joint tenancy in the said property is manifested by the presence of the four requisites required by law. They have a unity in the possession, interest, title and time because they both contributed equally to the purchase price and the property. Their title is derived from a single document which they both acquire at the same time and they are both in possession of such property.
In the case of Riddle v. Harmon (1980), the court held that a joint tenancy may be terminated by the sale or conveyance of one of the joint tenants of his or her share in the joint tenancy. The court further said that it is the universal right of every tenant to effect severance and destroy the right of survivorship through a conveyance made by his or her interest in such joint tenancy to another person. One of the joint tenants may sever the bonds of the joint tenancy even without using an intermediary device. The case of Swartzbaugh v. Sampson (1936) provides that one of the co-owners can lease the property without the consent of the others. However, if he receives rent from a third party, he is obliged to account to his co-owners for the rent. The court stated here that neither one of the joint tenants or a tenant in common can do any act to the prejudice of his co-owners in their estate. If for instance one co-owner conveyed his interest in the property, this conveyance will not bind the interest of the other co-owner who did not join in the conveyance in a suit for partition of the property.
The case of Hedley v. Roberts (1977), provides that a co-owner is entitled to encumber his interest in the land provided that it does not interfere with the rights being enjoyed by the remaining co-owners.
Advise to Denise
Denise did not acquire any right in the property because the contract between her and Amina and Ben is a license agreement and the law provides that a license agreement does not transfer any interest on the licensee.
The arrangement of the parties in a license agreement is called a license. The situation of the parties is very informal as compared to that of a lease. A lease creates an interest in the land while a license does not. With a license, the owners of a property is saying that the person can occupy the said property but the owners can interrupt such occupation any time and ask the person to leave. In a license agreement, the property owner exercises a great control over his property. The name of the agreement stated in the document is a great indication of the kind of agreement entered into by the parties, but such name is not conclusive. What matters is that the terms of the transaction are full of indications as to whether or not the agreement is a lease or a license (Net Lawman 2010).
Advise to Ethel
Ethel did not acquire any interest in the property of Ben and Amina. Ben and Amina only agreed to let Ethel stay for a short while during weekends and this agreement did not confer any title nor vest any interest in Ethel even though she is Aminas sister. The agreement of Ethel and the co-owners Ben and Amina can also be construed as a license agreement because in effect, Ethel was given a license to the use and occupation of one of the bedrooms in the farm house during weekends.
According to The Transfer of Property Act, 1882, is a transfer of the right to enjoy the concerned property for a specific period of time or in perpetuity. The lessor or the owner of the property gives the lessee or the one leasing the property a consideration periodically or usually at the start or end of the agreement. On the other hand, Section 52 of the Indian Easements Act of 1882 provides that a license does not allow any interest in the premises on the part of the licensee. It only gives such licensee a right to the use and occupation of the premises for a limited amount of time (Apna Paisa 2009).
Advise to Frances
Frances acquired an inchoate right in the property by virtue of her agreement with Ben. The verbal contract between Ben and Frances is a contract to sell because Ben agreed to sell his interest in the Camden Cottage to Amina. This contract to sell effectively terminated the joint tenancy that Ben and Amina had (Agent Extra.net 2003).
Severance describes the conversion of a joint tenancy into a tenancy in common. A joint tenancy will cease to be as such and will become a tenancy in common if one of the four unities is destroyed so that it will no longer be said that each of the co-owners will hold the same interest by virtue of a same act. It will not be possible to sever the unity of interest because of the fact that it defines the character of the property conferred and if the interest of the co-owners are conferred, no joint tenancy will exist. In the same way, the unity of possession cannot be severed because it is the representation and foundation of the relationship of the co-owners. What can be severed in the unity of time and title because it is the destruction of one of these two unities that results in the conversion of a joint tenancy into a tenancy in common (Hepburn 2001).
In this case, there is a severance of the joint tenancy by alienation. One of the joint tenant alienates his interest in favour of a third party. The third party then receives the interest and shares it with the remaining co-owner Amina.
A contract of sale is enforceable in equity because before the passing of the legal estate, the vendee will acquire an equitable interest in the land as a beneficiary under a constructive trust with Ben, the vendor. The creation of this interest will effect a severance of the joint tenancy in equity.
Advise to Gareth
Gareth has acquired an interest in the Camden Cottage in a sense that he will acquire the payment the Frances will be giving for the purchase of Bens part in the property.
The joint tenancy will automatically cease upon the death of a joint tenant and the title will vests on the surviving tenants free of claims of the heirs and the beneficiaries or creditors of the deceased provided that the joint tenancy was not severed during the lifetime of the deceased (Agent Extra.net 2003). In this case, the contract to sell between Ben and Amina terminated the joint tenancy and in the event of the sale, Frances is the one who will have a right to the said property. Gareth, the heir of Ben, will still be entitled to Bens share by way of compensation or payment by Frances.
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