When two or more people (co-owners) own property together they hold the property as either "joint tenants" or "tenants in common." The type of ownership determines the rights of the parties to sell their interest in the property to others, to will the property to their beneficiaries, or to separate their joint ownership of the property. Just as each of these affords a different set of rights and responsibilities, each requires a different set of conditions in order to exist.
Joint tenancy
Here, the co-owners do not have a specific share in the property; they own the whole thing together. Each has a right to live in and use the property, during their lifetime. When one of the owners dies, the property does not become part of their estate but becomes the possession of the other owner(s), this is known as the doctrine of "survivorship." If there is only one joint tenant left, he or she becomes the outright owner of the property and on his or her death the property will form part of his/her estate and can pass by either a will or by the law of intestacy ie where there is no will or no valid will.
Creating a joint tenancy
Joint tenancy is presumed but can be made clear with language indicating that intent in the deed of conveyance or other instrument of title or by a person in a will such as "to AB and CD as joint tenants" or "to AB and CD jointly."
Breaking a joint tenancy
Although no joint tenant has a distinct share in the estate the tenancy can be severed in three main ways:
�2 Mutual agreement: A joint tenancy can be divided up into separate shares if all parties to the joint tenancy agree;
�2 Bankruptcy: The bankruptcy of a joint tenant severs the joint tenancy into equal shares; if there are more than two joint tenants, the ones who are not bankrupt will continue to have a joint tenancy of their half share; and
�2 Notice of severance by a joint tenant: A joint tenancy can be converted to a tenancy in common by a notice to the other co-owners of their intention to sever the joint tenancy.
Tenancy in common
This is the opposite of joint tenancy. Where co-owners own property as tenants in common each owner has a separate and distinct share of the property. Tenants in common have no right of "survivorship," meaning that if one joint owner dies, that owner's share in the property will be part of his or her estate and pass by either a will, or by the law of intestacy. Also, as each joint owner has a share in the property, they may, in the absence of any restriction agreed to between the joint owners, sell or otherwise deal with their share in the property (eg mortgage it) during their lifetime, like any other personal interest.
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:
�2 Deed or Will eg: "To AB one quarter undivided share and to CD three quarter undivided share";
�2 Agreement: Any agreement between the owners as to their individual share;
�2 Contributions: The contribution to the deposit (if any) can determine the share a person holds;
�2 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:
�2 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.
�2 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.
�2 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.
�2 This article sets out general guidelines, All legal rules have exceptions and variations. How the law applies to you depends on the facts of your case.
�2 This column is an initiative of the Trinidad Guardian and the Law Association with assistance from students of the Hugh Wooding Law School.