As a way of investing for the future, most people purchase and own landed property, usually for residential, commercial, industrial purposes. The general inclination towards investments in landed properties is believed to be as a result of the appreciating value of land or for the purpose of bequeathing same to successors. In some cases, land may be owned jointly by two or more persons, possibly because they all contributed to the purchase of the property, inherited same jointly, amongst other reasons.
Joint ownership as the name implies, presupposes that each party has a right of ownership in the land and can exercise such power accruable to them on the property. However, the powers exercisable on the land must be exercised jointly by the parties. That is, such powers can only be exercised subject to the approval of both or all owners. This was illustrated in a judicial decision where Mr. A gifted landed property jointly to his two sons, Mr. B and Mr. C. Subsequently, Mr. B sold the land to a 3rd party without the consent of his brother, Mr. C. Aggrieved by this development; Mr. C instituted an action in court.
The issue for consideration was whether Mr. B could independently and without the consent of his co-owner transfer ownership of the land. The court held that as long as Mr. B was not the sole owner, he required the consent of his brother (Mr. C) to legally and properly transfer ownership to a 3rd party. The court also stated that having established that the land was jointly owned by Messrs. B and C up to the period of the alleged sale, the purported transaction transferring ownership to the appellant was void and of no effect. Therefore, considering that Mr. B had no legal right to sell the land without consent, the 3rd party practically bought nothing.
This position is founded upon the maxim "nemo dat quod non habet" meaning that one cannot validly give what one does not have. It is also instructive to note that a co-owner cannot hide behind the claim that he sold the building alone and not the land. The stance of the law is simple; whatever is affixed to the soil becomes part of it. What this implies is that once two or more parties are adjudged to be the rightful owners of a land, such land together with what is on it automatically belongs to all the owners.
The above notwithstanding, the principle of joint ownership does not imply that the co-owners are perpetually bound to that relationship. If at any time the parties choose to terminate the joint ownership of a particular property, they may voluntarily partition the property where such is allowed under the terms of allocation of the property. On the other hand, a party may also apply to a court of law for a partition of a jointly owned land where there has been persistent refusal by one or more of the owners to allow other co-owners to enjoy their rights in the land. Once the partition is settled, the parties are required to execute and register the form of conveyance which is appropriate to the interest they hold. The conveyance in this case is otherwise known as a Deed of Partition.
Finally, it goes without saying that it is important for every intending purchaser to conduct due diligence on a property to ensure that all the necessary approvals have been obtain. This is because the absence of the consent of a co-owner of a property will ultimately affect the validity of the sale. In such cases, the only remedy available to the purchaser will be to institute an action against the vendor to recover the money paid to him.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.