When Binta and George decided to buy their dream home, they pooled resources together and made it happen, and they opted for joint ownership of the property. The title documents were prepared in both their names in fine print, and they moved in.

It is not uncommon for married couples to jointly purchase cars, operate bank accounts, and contribute towards rent, childcare and other expenses. Real property is no exception, as it has become more prevalent for couples to invest in real estate as joint owners. Who would make a better candidate for partnership than one’s life partner?

In this series, we will take a cursory look at the concepts of joint ownership of property within the context of marriage. The most common forms of joint ownership of property are :-

• Joint tenancy
• Tenancy in common.

(Please note that tenancy in this context is not synonymous with the commonly known relationship between a landlord and his tenant per se. It refers to a right, share, or interest in property.)

What is Joint tenancy? Joint tenancy is a special form of ownership by two or more persons who have an equal share of the property, and on the death of either party, the share of the deceased person’s property passes to the co-owner. Joint tenancy in plain terms means that the married couple share equal ownership, and equal rights to keep or dispose of the property. This equal ownership right is based on the premise that husbands and wives contribute to the joint ownership financially or through any other means which may be incidental to the acquisition of the property.

The consequence of equal rights of ownership suggests that Binta cannot let, sell or otherwise deal with the property without obtaining George’s consent, and vice versa.

In addition, this form of ownership bestows survivorship rights in the event of the death of the co-owner. Basically, survivorship rights mean that when a spouse dies, his other half receives all the jointly owned property, as the right of ownership inevitably passes to the surviving spouse.

The rights of ownership continue even in the case of divorce. When joint tenants with equal interest in a property separate or divorce, the property remains in the joint control of both parties, unless the court orders the division of the property.

A point to note is that joint tenancy is not the same as a situation where a person buys property in the name of his spouse, or lists the spouse as a co-owner. Should a dispute arise from such an arrangement, the law would presume that the property was intended to be a gift to the spouse, unless the other party is able to prove otherwise.

Joint tenancy has its benefits. For one, it can help avoid problems which may occur when a spouse dies without preparing a will to determine the manner in which his assets will be distributed. When a spouse dies, ownership is automatically transferred to the surviving partner, and so creates a form of security for the widow or widower. Joint tenancy is also a more affordable option as opposed to separate ownership as couples combine resources to invest in the real estate industry.

When couples opt for joint tenancy, they have equal rights, obligations and responsibilities; enjoy profits and share risks and liabilities regarding the property. It also creates a system where the husband and wife make decisions together, and so it builds trust and mutual respect.

Joint tenancy, however, is not without its shortcomings. It may be considered inflexible, as the joint tenants are unable to sell, transfer or otherwise utilise the property without the consent of the other party. If George wants to use the house jointly owned with Binta as security for a loan for his business, he cannot legally do so if Binta does not give her consent.

Plus, the existence of the right of survivorship means that the husband or wife would be unable to transfer a share of the property to other beneficiaries, such as children, or relatives, as the jointly owned property goes to the surviving spouse automatically, on the death of a joint owner.

An unstable marital relationship or estranged couples who are joint tenants may experience difficulties in dealing with the property, as one party cannot take any steps regarding the property without the consent of the spouse. Hence, independence to make business decisions is limited.

Having looked at the concept of joint tenancy, it is left to the couple to consider the pros and cons, and take care to consider their needs before taking the plunge. As always, it is important for couples to carry out research or consult legal and real estate professionals before venturing into the market.

TO BE CONTINUED IN THE NEXT POST…