Co-ownership of Property and the Right of Survivorship1
Co-ownership of property refers to a legal relationship where two or more people acquire or own a property jointly. In Nigeria, there are at least four recognized ways by which two or more persons may co-own a property, namely: joint tenancy, tenancy in common, tenancy by entirety2 and family ownership.
Each type of tenancy has its own incidents and legal implication. This article seeks to examine the operation of the concept of joint tenancy and the attendant right of survivorship, which operates to the effect that where one co-owner dies during the subsistence of a joint tenancy, his interest in the joint property does not pass to his estate, but passes by operation of law to the surviving joint tenants.
- The Concept of joint tenancy
When property is held by co-owners as joint tenants, it entails that each joint tenant owns the whole of the property just as the others and they all have equal right of possession of the whole of the property. None of the co-owners has a separate share or interest in the property. No joint tenant can claim any portion of the property as his own. The joint tenants hold their interest in undivided shares and are deemed in the eyes of the law as one single owner, so that no joint tenant can dispose of any part of the property without the consent of the other tenants or first severing the joint tenancy.3
The most significant implication of a joint tenancy is the operation of the right of survivorship, which implies that if one joint tenant dies, his ownership share of the property passes on to the surviving joint tenants in equal shares and not to his heirs. Thus, if A and B own a property as joint tenants, upon the demise of A, the property automatically passes to B absolutely. The estate or survivors of A cannot lay claim to A's share in the property. Similarly, whilst the joint tenancy subsists, A cannot transfer his share in the property to another person, neither can he pass the property to beneficiaries under his will. If both A and B die at the same time, for example in a car accident, such that it is difficult to tell who died first, the older of the two joint tenants is deemed to have died first, so that the whole of the property passes to the estate of the younger deceased joint tenant.
The right of survivorship or jus acrescendi, as it is often called, is what distinguishes a joint tenancy from a tenancy in common. The right of survivorship has no application to tenancies-in-common in that the size of each tenant in common's share is fixed once and for all and is not affected by the death of one of his co-tenants. When a tenant in common dies, his interest passes under his will or intestacy because his distinct share in the property is his to dispose of as he wishes. His interest does not pass to the surviving tenant. The share of each tenant in common is alienable inter vivos; is attachable, inheritable upon intestacy and devisable.4 Although they share certain similarities, the concepts of joint tenancy and the tenancy in common should not be confused with ownership of family property, which is property which devolves from father to children and grandchildren under native law and custom and which no individual child or member of the family can dispose of in his or her will (until such property is partitioned) and each child or member of the family has his or her own separate share of the whole.5 The most remarkable feature of family property that distinguishes it from joint tenancy (and of course tenancy in common) is the "Decent of interest in family property to further generations. In joint tenancy, interest is given but in family property, interest is not given. It passes from generation to generation.6
The general position of the law is that where property is given to, or acquired by, several persons concurrently, the presumption is that they take the property as joint tenants unless there are clear words of severance in the instruments or such words could be inferred. The reference point to determine whether the owners take the property as joint tenants is always the instrument of transfer. The courts will usually find that the property is held in joint tenancy where there is no word of severance in the instrument of transfer indicating that any of the co-owners was given a distinct interest in the property.7
However, for this presumption to hold true, the courts will look out for what is usually referred to as the four unities which must exist in all cases of joint tenancy, namely: unity of possession, unity of interest, unity of title and unity of time.
Unity of possession means that all joint tenants have equal right to possess and enjoy the whole of the property. The right of each tenant to the land applies to each and every part of the land. Therefore, no joint tenant may take exclusive possession of any portion of the land, by excluding other joint tenants. There cannot, therefore, be a trespass by any joint tenant against another no matter how irritating, intolerable, or unpleasant the other joint tenant is, except where one joint tenant has wrongfully put the other out of possession or attempts to alienate his interest in the joint property without the concurrent consent of the other joint tenant(s).8
Unity of interest entails that the interest of each and every joint tenant is exactly the same in terms of extent, nature, and duration. No joint tenancy can exist between a freeholder and leaseholder, because the nature (and duration) of their interests differs. Also, one joint tenant cannot hold a legal interest whilst the other holds an equitable interest. The interests of the joint tenants must be exactly the same.
The unity of time requires that the joint tenants must acquire their interest or title to the property at exactly the same time, whilst unity of title requires that all owners must receive their interest/title through the same act/document and from the same source.9
So long as the joint tenancy subsists there cannot be any destruction of any of the "unities". When one or all of the unities of time, title, and interest are destroyed the joint tenancy is severed and a tenancy in common results. This outcome follows from the rule of law that a tenancy in common requires only one unity, that of possession.
Once the four unities are established, a joint tenancy and the attendant right of survivorship subsists, so that upon the demise of a joint tenant, his interest in the joint property passes to the surviving joint tenant(s) absolutely. The right of a surviving joint tenant prevails even though the joint tenant who has died has devised his interest to a third person.10
The concept of joint tenancy has its own advantages and disadvantages. An obvious disadvantage being that the attendant right of survivorship appears to be unfair to the survivors and estate of a deceased joint tenant who would cruelly find out upon the demise of their loved one that they are not entitled to inherit his property. The flip side to this also constitutes an advantage to the surviving joint tenant who would automatically acquire the interests of the deceased joint tenant without the stress of obtaining probate.11
However, any joint tenant can in his lifetime severe the joint tenancy by serving a notice of severance on the other joint tenant(s), which would convert the joint tenancy to a tenancy in common.12
The concept of joint tenancy and the attendant right of survivorship is indeed peculiar in its application. It has its own advantages and disadvantages. It behoves every co-owner of property to seek proper legal advice as to the nature of his ownership interests and its present and future implications.
1 Emmanuel Abasiubong Bassey, Associate in the Dispute Resolution Department of S.P.A Ajibade & Co., Lagos.
2 This conceives of a single and indestructible joint ownership of real property held by spouses which like joint tenancy carries a right of survivorship, but the right cannot be partitioned and is supported by the unity of marriage which in turn embodies the legal fiction that husband and wife are one. Accordingly, the result of this unity is that neither husband nor wife can by his or her sole act defeat the survivorship interest of the other. See, Okere v. Akaluka (2014) LPELR-24287(CA). It is however, submitted that this type of tenancy does not exist anymore by virtue of Section 1 and 5 of the Married Women's Properties Act, 1881 which operated to convert all tenancy by entirety to joint tenancy.
3 See, Olowofoyeku v. A.G., Oyo State (1990) 2 NWLR (Pt. 132) 369.
4 See, Ugbene v. Ugbene & Ors. (2016) LPELR-42110(CA) (pp 71 - 78 paras E - C).
5 See, Lawani & Anor v. Grillo & Ors. (2018) LPELR-44914(CA).
6 See, Ugbene v. Ugbene & Ors. (2016) LPELR-42110(CA) (pp 71 - 78 paras E - C).
7 See, Shonekan v. Smith (1964) LPELR-25164(SC).
8 See, Majeologbe v. Solarin (2015) LPELR-25588(CA) (pp 40 - 41 paras B - E), where the Nigerian Court of Appeal held that it amounts to trespass for one joint tenant to attempt to alienate any portion of the joint property without the concurrent consent of the other joint tenant.
9 See, https://www.lawteacher.net/lectures/land-law/co-ownership/joint-tenancy-v-tenancy-in-common/ (accessed on 17th March 2022).
10 See, Shonekan v. Smith (1964) N. M. L. R. 59 at p. 62; (1964) 1 All N.L.R. 168 at p. 173 and Chinweze & Anor. v. Masi & Anor (1989) LPELR-851(SC).
11 See, Udok v. Udoekong (2020) LPELR-50067(CA).
12 See, https://www.lawteacher.net/lectures/land-law/co-ownership/severance/ (accessed on 28th March 2022).
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.