Joint Tenancy vs Tenancy in Common (Part 1)

In cases where two or more people own property together, whether a parcel of land or a home this is referred to as co-tenancy. Legally, there are two distinct types of co-ownership arrangements that allow multiple individuals to share enjoyment of the same property: joint tenancy and tenancy in common. It’s crucial to differentiate between these forms of co-ownership. In the first part of this series, we will thoroughly explore the concept of joint tenancy and what it entails.

Section 2 of the Land Act, 2012 defines joint tenancy to mean a form of concurrent ownership of land where two or more persons each possess the land simultaneously and have an undivided interest in land under which upon the death of one owner it is transferred to the surviving owner or owners.

The key features that distinguish a joint tenancy from a tenancy in common are the right of survivorship and the four unities: the unity of possession, unity of interest, unity of title and unity of time. To expound on these features, we shall rely on Section 91 of the Land Registration Act, 2012 and the insightful works of the Right Hon. Sir Robert Megarry and Sir William Wade in “The Law of Real Property”.

Below, we discuss the key distinctive features as follows:

  1. The right of survivorship (jus accrescendi)

The right of survivorship also referred to as jus accrescendi refers to a situation where upon the death of a joint tenant, the deceased tenant’s interest vests or is transferred to the remaining surviving tenant(s). Thus, if four joint tenants own a parcel of land and one of them dies, the three remaining tenants automatically own a third share of the property.

  1. The unity of possession

The unity of possession implies that every joint tenant possesses an equal entitlement to any portion of the land or property as the others. This ensures that each co-owner or joint tenant has an undivided right to occupy any part of the land without excluding others, reinforcing the notion that none of them possesses a superior claim to the property as compared to the rest. This, in turn, curtails the viability of actions such as trespass, rent disputes, claims for money, and requests for accounting between the joint tenants.

  1. The unity of interest

This unity implies that the interest of each joint tenant is the same in extent, nature and duration as they are deemed to hold on estate/interest. Therefore, any disposition (sale/transfer) of the property requires the consent of the joint tenants.

  1. The unity of Title

The unity of title means that each joint tenant must claim his/her title to the land under the same document. This is attained by the land registrar noting in the land register and registering the title document jointly in the names of the joint tenants.

  1. The unity of time

The unity of time implies that the interest held by each tenant must vest at the same time. This unity promotes a sense of fairness and equality among joint tenants. It prevents potential complications and disputes that could arise if ownership interests were acquired at different times, thereby maintaining the harmonious nature of joint ownership.

In conclusion, it should be noted as provided in Section 91(2) of the Land Registration Act, 2012 that where the instrument of transfer(the title document) does not specify the nature of co-ownership that is if the property is held jointly or in common, there shall be a presumption that the co-owners hold the property as tenants in common but in equal shares.

Written by Cynthia Kitolo
Legal Officer & Advocate of the High Court of Kenya

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