Africa-Press – Uganda. It is not uncommon in business including real estate, to find property whose ownership is vested in more than one person. It is for this reason that the law has evolved some principles to govern co-ownership.
Misunderstanding these principles can be very costly, while understanding them guarantees better planning and limited or no conflicts amongst co-owners and the beneficiaries of their estates. Here are some of these principles.
Co-ownership can be inferred from the word itself: more than one person has an interest in a piece of real estate. For this article, we shall focus on two forms of co-ownership namely; joint tenancy/joint ownership and tenancy in common.
Under the law, explicit recognition is given to joint tenancies and tenancies in common.
Joint tenancy versus tenancy in common
A basic difference between joint tenancy and tenancy in common is that in the former, each of the co-owners is equally and wholly entitled to the whole of the estate. Joint tenancy also confers a right of survivorship on any surviving co-owners. Tenancy in common, on the other hand, envisages distinct shares or proportions of entitlement to each of the co-owners and confers no right of survivorship.
Joint tenancy is characterised by the existence of “the four unities” of possession, interest, title, and time. This means each joint tenant must have a right to possess each part of the land (no sub-division to the exclusion of others); must be entitled to the whole of the property; must derive their title from the same document; and the co-owners must have acquired their interest in the property at the same time.
One of the practical implications of this is that no co-owner can be said to have trespassed on the other’s portion as their interests are inseparable. While this form of co-ownership may have some advantages, it restricts an individual from enforcing certain rights against their co-owner.
Right to survivorship
The right to survivorship in this context means if multiple co-owners survive after the death of one, the estate of the deceased co-owner is not entitled to any part of the property since the joint tenancy continues, and that if only one co-owner survives, the entire interest passes to the survivor. This means even if a co-owner under a joint tenancy purports to bequeath his “portion” of land to his estate, such a bequest will be ineffectual because they have no such right.
Tenancy in common, on the other hand, allows for alienation of the property by the deceased’s estate as there is no survivorship. Further, each of the co-owners under this form of ownership can have a portion of the property commensurate to their interest therein. For most individuals, this is the preferred form of common ownership since it allows their estates to benefit from their portion or specific interest in the property.
Whilst co-ownership is not restricted to marriage, its implications are more likely to be felt in marriages. At the point of registration or transfer of land into the names of a couple, and it is the couple’s intention that the doctrine of survivorship applies, couples should ensure that this is clearly indicated on the certificate of title, or else, the law will presume a joint tenancy. Such indication may be my adding the words “tenants in common” or the actual percentage interest that each couple or co-owner is entitled to in a piece of real estate.
Since we know that one of the most disconcerting issues surrounding land in Uganda is the risk that one’s spouse and/or children will be dispossessed of land either by the deceased’s extended family or rogue elements, registering joint ownership in land may as well be a way to protect against such unscrupulousness.
But whichever form of co-ownership is preferred, always seek legal advice since there are wide ranging implications depending on the type of co-ownership chosen.
The author, Alex Matovu is a partner at Signum Advocates.