Joint Tenancy and Tenancy in common are similar in respect to the fact that they are estates held by more than one owner. However, both concepts are different in every other aspect.
In Joint Tenancy, each tenant has equal shares in the same property with the same deed at the same time. There contain no words of severance. This is usually the case in properties purchased by married couples. Hence, the ingredients of a Joint Tenancy are;
- Unity of Title: the co-owners must have the same title to the property and the title must emanate from the same grantor.
- Unity of Interest: each co-owner owns an equal share of the property;
- Unity of Time: the co-owners must acquire the property at the same time.
- Unity of Possession: each co-owners must have an equal right to possess the whole property
On the other hand, Tenants-in-Common arises where the property’s instrument of a title has words of severance or separation or distribution property. The tenants may have unequal shares and a different ownership interest in the property. Here, a person might own 25% of the property while another might own 75% of the property usually based on their contribution to the purchase of the property.
In Joint Tenancy, instances, where co-owners predeceases the other owners, the deceased owner’s share of the property devolves to the surviving co-owner of the property, and the deceased owner’s estate and heirs will receive absolutely nothing. Furthermore, no probate is required to transfer the property into the names of the surviving co-owners. This is known as RIGHT OF SURVIVORSHIP as enunciated in the case of Obasohan v. Omorodion (2001) LPELR-SC.131/1996 or (2001) 13 NWLR (Pt.729) 206.
However, in Tenancy in Common, the deceased owner’s share of the property forms part of his estate and the law applicable to Wills (if he has one) or administration of estate law applies to it if he died intestate. Thus, a tenant in Common has no right of survivorship.
A Joint Tenancy continues as long as more than one Joint Tenant survives. Upon the death of one tenant, the shares of the other tenants increase equally as they automatically absorb the ownership interest of the deceased person.
Moreover, the presence of any of the following words in a Will creates a Tenancy-in-Common: “in equal shares”; “share and share alike”; “to be distributed between”; “to be distributed among them in joint and equal proportion”; “equally”; “among”; and “respectively”.
The Supreme Court held that by operation of law, joint tenancy leads to the doctrine of survivorship by which if one joint tenant dies without having obtained a separate share of the property for himself or herself, during his or her lifetime, his or her interest will not pass to his or her estate but such interest will accrue to the other surviving joint tenants. See Chinweze v. Mazi (1989) 1 SC (part 11) 33 at 46
Ways to Terminate Joint Tenancy
- By an agreement with the co-tenants to convert the tenancy to a Tenancy in Common
- By a transfer of shares to a third party (called the strawman) without the consent of the other tenants.
- By Partition. This is the division of the property or shares in the property. It could be a physical division of the land or sale of the property and each co-tenant receives their share of the sale.
Ways to terminate Tenancy in Common
- By agreement between the co-tenants to sever the tenancy.
- By partition by the co-owners or by an order of the court
- By ouster, which means any act which unlawfully deprives a Tenant in Common of their share of the property?
In conclusion, it should be noted that there are limits to which properties can be owned and disposed of, the authority to sell a property between two persons depends on whether there is sole ownership, tenancy in common or the property is jointly owned. A co-owner cannot dispose of, partition or transfer a property solely owned by both of them without consent from the other owners of the property.
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