CO-OWNERSHIP OF PROPERTY AND THE RIGHT OF SURVIVORSHIP

CO-OWNERSHIP OF PROPERTY AND THE RIGHT OF SURVIVORSHIP

Property that is acquired or owned jointly by two or more individuals is said to be co-owned legally. In Nigeria, co-ownership of a property by two or more people is permitted in at least four different ways: joint tenancy, tenancy in common, tenancy by the entirety, and family ownership.

When property is owned by co-owners as joint tenants, it means that each joint tenant is an equal owner of the entire property and has the right to possess the entire property. No co-owner has a separate stake in the property or part of ownership. No shared renter may claim ownership of any real estate. No joint tenant may dispose of any portion of the property without the other tenants' approval or without first severing the joint tenancy since the joint tenants maintain their interest in undivided shares and are considered to be one single owner in the eyes of the law.

The operation of the right of survivorship, which entails that if one joint tenant passes away, his ownership portion of the property falls to the other joint tenants in equal shares and not to his heirs, is the most important consequence of a joint tenancy. As a result, if A and B own a property as joint tenants, the property automatically and completely goes to B following the death of A. A cannot assert a claim to the property's part on behalf of the estate or A's survivors. Likewise, A is not permitted to sell his share of the property while the joint tenancy is in effect, nor is he permitted to leave it to heirs or other beneficiaries in his will. The younger of the two joint tenants' estate receives the entire property if both A and B pass away at the same time, say in a car accident, making it impossible to determine who passed away first. In this case, the older of the two joint tenants is deemed to have passed away first.

A joint tenancy differs from a tenancy in common due to the right of survivorship, or jus acrescendi as it is commonly known. The size of each tenant in common's share is set in stone and is unaffected by the passing of one of his co-tenants, therefore the right of survivorship does not apply to tenancies in common. Because his unique portion of the land is his to do with as he pleases, when a tenant in common goes away, his interest falls under his will or intestacy. He does not leave his interest to the surviving renter. Inter vivos alienability, attachability, intestacy inheritability, and devisability all apply to each tenant in common's share.

The concepts of joint tenancy and tenancy in common, though they have some similarities, should not be confused with ownership of family property, which is defined as property that passes from a father to children and grandchildren according to native law and custom and that no individual child or member of the family can dispose of in his or her will (until such property is partitioned), and each child or member of the family has his or her own separate share of the whole. The "Decent of interest in family property to later generations" is the most notable characteristic that sets it apart from joint tenancy (and, of course, tenancy in common). Interest is paid in shared tenancies, but not in family properties. It is passed down from one generation to another.

The law generally maintains that when property is given to or acquired by numerous people at the same time, they are presumed to do so as joint tenants unless there are express or implausible language to the contrary in the documents. The transfer instrument is always used as a benchmark to assess if the owners are taking ownership as joint tenants. When there is no mention of severance in the document of transfer showing that any of the co-owners was given a separate interest in the property, the courts will typically decide that the property is held in joint tenancy.

The four unities—unity of possession, unity of interest, unity of title, and unity of time—which must all exist in all cases of joint tenancy must be present for this presumption to remain true, according to most legal authorities.

The term "unity of possession" refers to each joint tenant's equal right to own and use the entire property. Each and every portion of the land is subject to the rights of each tenant. As a result, no joint tenant is permitted to evict the other joint tenants from any section of the land. Therefore, no matter how annoying, intolerable, or unpleasant the other joint tenant is, there cannot be a trespass by one joint tenant against the other, unless the first joint tenant has wrongfully evicted the second or attempts to sell or otherwise alienate his interest in the joint property without the other joint tenant's concurrent consent (s).

Unity of interest requires that each and every joint tenant's interest be exactly the same in terms of scope, character, and duration. Freeholders and leaseholders cannot be joint tenants because of the different natures (and durations) of their rights. Additionally, neither joint tenant may have a legal interest while the other does and vice versa. The mutual interests of the joint tenants must be identical.

While unity of title requires that all owners gain their interest or title through the same act or document and from the same source, unity of time requires that the joint tenants acquire their interest or title to the property at the exact same time.

Any of the "unities" cannot be destroyed as long as the joint tenancy exists. The joint tenancy is broken up and a tenancy in common results when one or more of the unities of time, title, and interest are destroyed. This result stems from the legal principle that a tenancy in common only needs one unity, namely possession.

As soon as the four unities are established, a joint tenancy with the accompanying right of survivorship is created, which means that upon the death of a joint tenant, his stake in the joint property transfers completely to the surviving joint tenant(s). Even though a deceased joint tenant's interest has been devised to a third party, the right of a living joint tenant nonetheless applies.

The idea of joint tenancy has advantages and disadvantages of its own. The attendant right of survivorship appears to be unfair to the survivors and estate of a deceased joint tenant, who would sadly learn after their loved one's passing that they are not eligible to inherit his property, and this is an obvious disadvantage. The surviving joint tenant would instantly inherit the deceased joint tenant's interests without having to deal with the hassle of seeking probate, which is the other side of this and also benefits the surviving joint tenant.

Any joint tenant, however, has the right to sever the joint tenancy at any time during his or her lifetime by giving notice to the other joint tenant(s) and converting the joint tenancy to a tenancy in common.

NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com

WRITTEN BY CHAMAN LAW FIRM TEAM

EMAIL: chamanlawfirm@gmail.com

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