Features Of Joint Tenancy: Before discussing the features of joint tenancy, we need to understand what it is all about. Joint tenancy is one of the types of Co-ownership along with tenancy in common.
What then is co-ownership? Co-ownership simply means where two or more people own simultaneously a given estate in land and by such ownership entitled to the interest in such estate.
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Meaning of Joint Tenancy
As a type of co-ownership, joint tenancy is one in which a tenant is wholly and equally entitled to the entire estate as other joint tenants. The existence of joint tenancy could either be an equitable interest or a legal interest, it could also be two of both interests. No individual joint tenant is said to hold a share in land but every joint tenant is invested with an interest in the land and this may be regardless of the fact that such interest is in freehold or in a leasehold.
The reason for this is because each joint tenant is effectively a single composite person, given that there are no shares, in the eyes of the world, they are a single owner. With this, a joint tenant can easily be severed into shares, therefore, rendering all interests in equal shares.
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Characteristics/Features of Joint Tenancy
The features of joint tenancy are:
1. Right of Survivorship: Each of the co-tenants has a right of survivorship over the interest and rights of the other co-tenants. This is the right of one co-tenant to receive an interest in a property automatically upon the death of another co-tenant. Upon the death of a joint tenant, his interest accrues to the surviving joint tenants by rights of Survivorship, it continues until there is no one left.
Such interest do not in any way go back to the estates of the deceased joint tenants. Under the common law, a corporation cannot be a joint tenant because a corporation is known to survive forever, it is believed they do not die. However, this position was changed upon the enactment of the Bodies Corporate (Joint Tenancy) Act 1899.
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2. Presence of the four unities: The requirement for creating and maintaining joint tenancy are very strict compared to joint tenancy, this is because joint tenancies are considers more concurrent than tenancy in common.
In other to create joint tenancy there are four elements that must be satisfied these elements are called the four units. These four unites are Unity of possession, interest, time and title.
a. Unity of Possession: The unit of possession requires that every joint tenant have a possessory right to the entire property. This kind of unity is very similar to tenancy in common, the difference between them is that in tenancy in common, the equal rights of possession was presumed however, this could be overcome with a clear intent of the parties.
Equal right of possession is a necessary element with a joint tenant, an example is where A conveys his house to B and C in equal shares “as joint tenants with rights of survivorship,” but in the conveyance, A provides that B shall not have the right to live in the house from June to September.
A joint tenant has the right to convey his or her interest to another but once the interest is given to another, the joint tenancy is destroyed with respect to the share of the property which was transferred.
This is because such transfer breaks the unity of title and time thereby creating an interest on the person who gets his interest on a later date with a different instrument other than the instruments of the original joint tenants.
Presently, the most common kind of joint tenancy we have today is the joint bank accounts and this is not related to real property in any way. Although not being a joint tenancy of real property, this form of joint bank account operates at the lifetime of the joint tenants. During their lifetime of the account holders, any of them could withdraw money from said account and when any of the parties die, the proceeds in the account automatically belongs to the other holders of the account with no questions asked.
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b. Unity of Interest: A unity of interest means that each joint tenant is wholly entitled to the whole. No joint tenant has a greater interest than any other joint tenant, they share same interest in terms of its extent, nature, and duration. Therefore, no joint tenant can exist between a leaseholder and a freeholder because their nature of interest differs.
This also applies to the owners in possession and the owners in remainders, and the owners of a fee simple interest and those with life interest.
c. Unity of Title: This unity requires that every joint tenants acquires title by the same instrument. This instrument could be a deed, a trust, a will, or in any other property which can convey properties, on the other hand, two people could be joint tenants if they acquire title by adverse possession. For example: A in a deed conveys his properties to B, giving him one-half of the interest in his House, but such interest will only be effective upon his death.
In his Will, he leaves the other one-half of the house to B and writes specifically that B and C are to be joint tenants. However, because their tenancy were not created in the same instrument (Deed and Will), the interest A has created is a tenancy in common and not joint tenancy. Unity of interest must be made in the same deed.
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d. Unity of Time: The unity of time just as the name stipulates, it implies the time when the tenants too on the property. Each tenant takes his or her share exactly at the same time.
An example is where A conveys an interest of one-half of his apartment to B, a month later, he conveys the remainder of the property (one-half) to C. while transferring the interests, A intended that B and C be joint tenants in the property. However, according to the law, this is not a joint tenancy, this is because they received their title at different times. Therefore instead of joint tenancy, B and C are tenancy in common in the apartment instead.
3. Absence of the words of severance: Words which are used to identify that the tenants are each to take a distinct share in the properties are words like “in equal shares” “share and share alike”, “respectively”, etc. in the case of Shonekan v. Smith, the presumption of law is in favour of joint tenancy unless there are words of severance in the instrument or they could be inferred.
In this case, a settlor limited property to trustees upon certain trusts and thereafter “in trust for the settlor’s children who shall be living at the date of the death” of a named individual. It was held that a joint tenancy was created since there was nothing in the Deed of Settlement indicating that the surviving children were each to take a separate and distinct.
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In conclusion, when creating an interest in joint tenancy, the devisor should be careful not to contravene the methods of creating such interest in other not have the interest fall.
Edeh Samuel Chukwuemeka, ACMC, is a lawyer and a certified mediator/conciliator in Nigeria. He is also a developer with knowledge in various programming languages. Samuel is determined to leverage his skills in technology, SEO, and legal practice to revolutionize the legal profession worldwide by creating web and mobile applications that simplify legal research. Sam is also passionate about educating and providing valuable information to people.