Section 2 of the Land Act, 2012 defines tenancy in common as a form of co-ownership (concurrent ownership) in which two or more people possess land simultaneously where each person holds an individual, undivided interest in the property and each party has the right to alienate, or transfer their interest. For instance, a property may be held and be in the name of three different people with Tenant A holding 20% of the property, Tenant B holding 30% of the property and Tenant C holding 50% of the property.
This type of co-ownership is common with chamas or co-operative societies where different people with different interests own the same property.
What are the features of a Tenancy in Common?
- A tenant in common holds an undivided share in the property.
This means while a co-tenant has a right of possession of the property, they lack exclusive possession over the entire property. A tenant may therefore do whatever they want with their share of the property without affecting the interest of the other co-owners.
- No unity of time
Ownership in tenancies in common may be obtained at different times, so that one tenant may get an interest in the property years after another tenant or tenants have entered into a tenancy in common.
- No right to survivorship
In tenancy in common, there is no right of survivorship thus when a co-owner dies, their share of the property forms part of their estate. The property is passed down to the rightful beneficiaries through a succession cause via the process of transmission.
What factors can lead to the termination of a tenancy in common?
- Sale of the Property: If all co-owners agree, they can sell the property on the open market. The proceeds from the sale are then distributed among the co-owners based on their ownership shares.
- Buyout: Co-owners can also terminate the tenancy in common by one or more co-owners buying out the interests of the other co-owners. This can be done through a negotiated buyout agreement, where co-owners agree on a purchase price and terms.
- Voluntary Agreement: All the co-owners can agree to terminate the tenancy in common through a written agreement. This agreement should specify how the property will be divided, sold, or transferred to one or more co-owners. All co-owners must consent to this agreement.
- Partition Action: any co-owner can initiate a partition action to the Registrar of Lands in line with Section 94. The Registrar is required to effect the partition of the land in accordance with the agreement of the tenants in common.
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