Joint ownership

[ outlines some forms of joint ownership and how they are created ]

Joint ownership is when two or more persons hold title to the same property. In case of coparcenary, the members have a common and an equal interest in the ancestral property. Any co-owner can transfer his share in the property to an outsider or another coowner, and the transferee steps into the shoes of the coowner. The transferee becomes the coowner.

   A co-owner is entitled to three essentials of ownership — right to possession, right to use and right to dispose off the property. Therefore, if a co-owner is deprived of his property, he has a right to be put back in possession. Such a co-owner will have an interest in every portion of the property and has a right irrespective of his quantity of share, to be in possession jointly with others. This is also called jointownership.

   Co-ownership can be changed to sole ownership through partition. The term coowner is wide enough to include all kinds of ownerships such as joint tenancy, tenancy in common, coparcenary, membership of Hindu Undivided Family etc. The very fact that the parties have certain shares in the property indicates that they are co-owners.

Here are some forms of co-ownership:

Joint tenancy    
This entails the right of survivorship. Upon the death of one joint tenant, his interest immediately passes to the surviving joint tenants and not to the descendent’s estate. Joint tenants hold a single unified interest in the entire property. Each joint tenant must have an equal share in the property. Each joint tenant may occupy the entire property subject only to the rights of the other joint tenants. Joint tenancy has several requirements that must be met in order to be properly created. The conveyance must state specifically that the grantees are taking the property jointly. There are four additional legal requirements necessary in order to create a joint tenancy.

   Unity of time: The interests of the joint tenants must vest
   at the same time.

   Unity of possession: The joint tenants must have undivided
   interests in the whole property and not divided interests in 
   separate parts.

   Unity of title: The joint tenants must derive their interest by
   the same instrument.

   Unity of interest: Each joint tenant must have estates of
   the same type and same duration.

All these four unities must exist. If one unity is missing at any time during the joint tenancy, the type of co-ownership automatically changes to a tenancy in common. A joint tenancy may be created by a will or deed but can never be created by intestacy because there has to be an instrument expressing joint tenancy. A joint tenancy is freely transferable.

Tenancy by entirety    

This type of co-ownership is exclusively for a husband and wife. Tenancy by entirety provides the right of survivorship. To exist, a tenancy by entirety requires that the four unities of a joint tenancy exist, plus a fifth unity of marriage should exist between the two co-owners. However, even if all five unities exist, the type of co-ownership may still be joint tenancy if the conveying instrument indicates as such. Unlike joint tenancy, tenancy by entirety does not allow one spouse to convey his or her interest to a third party. However, one spouse may convey his or her interest to the other spouse.

   A tenancy by entirety may be terminated only by divorce, death, or mutual agreement by both spouses. A terminated tenancy by entirety becomes a tenancy in common.

   Section 44 of the Transfer of Property Act 1882 deals with transfer by a co-owner. It also deals with rights of a transferee in this type of a transaction. Where a co-owner transfers his share of a property, the transferee acquires transferor’s right to joint possession, use, and to enforce a partition of the property. Where transferee of a share of a house belonging to an undivided family is not a member of the family, he will not be entitled to joint possession or other uses.

   A person who takes transfer from another, steps into the shoes of his transferor, gets all rights, and becomes subject to all liabilities of the transferor. He becomes as much a co-owner as the transferor was before the transfer. A coparcener of a Hindu Undivided Family can alienate his share in the property for a consideration. But in some cases of Mitakshara coparcenary, the consent of other coparceners is required before any such transfer.

Tenants in common    

When the type of coownership is not specifically stated, by default a tenancy in common is likely to exist. Each tenant in common has a separate fractional interest in the entire property. Although each tenant in common has a separate interest in the property, each may possess and use the whole property.

   Tenants in common may hold unequal interests in the property but the interest held by each tenant in common is a fractional interest in the entire property. Each tenant may freely transfer his interest in the property. Tenants in common do not have the right of survivorship. Therefore, upon the death of one tenant in common, his interest passes through a Will or through the laws of intestacy to another person, who will then become a tenant in common with the surviving co-owners.

Ashish Gupta