[ecis2016.org] There are four major ways to own a property jointly. These include tenancy in common, joint tenancy, tenancy in entirety and coparcenary. We examine each of them
Home buyers must familiarise themselves with the basic principles of co-ownership of property, before entering into such an agreement. Discussed in this article, are the types of joint ownership or co-ownership of property.
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A joint tenancy is one, when the title deed of the property works on the concept of unity by way of providing them equal share in one property. The key determinants of unity in this form of co-ownership are unity of title, unity of time, unity of interest and unity of possession. Since this arrangement works on the law of survivorship, upon the death of one joint owner, his share automatically passes to the surviving owners.
Note here that although joint tenancy may not be created by intestacy, it can be created through a will or deed. Also noteworthy is that a joint tenancy can easily be transferred. Section 44 of the Transfer of Property Act, 1882, which deals with the transfer of share by one of the joint owners, says that the person benefiting from transfer of ownership acquires the same legal right in the property as the previous owner.
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Joint tenancy example
Rekha, Raj, Suresh and Mangal bought a property in 2012 (unity of time).
The property is registered as joint property under their names (unity of title).
Each joint owner holds a 25% share in this property (unity of interest).
All the four owners live in this house (unity of possession).
By virtue of joint tenancy, the share of a deceased member would pass on to the survivors and not to the late joint owner’s legal heirs.
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Tenancy in entirety
This form of joint ownership is actually a variation of joint tenancy, i.e., application between co-owners of a property also joined by way of marriage. This sort of co-ownership works on the four models of unity and survivorship but between spouses only. The joint ownership in this arrangement stands altered, in case the spouses mutually agree to alter the same or file for divorce.
The spouses bound by tenancy in entirety, cannot sell the property or transfer their share in the property to a third party, unless both agree to such an arrangement.
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Tenancy in entirety example
Spouses Nitin and Mitali bought a home in 2012 and registered it in their combined names. They have been living in the house ever since. In case either of them dies, the survivor would get the deceased party’s share in the property and not the late joint owner’s legal heirs.
Tenancy in common
When two or more people jointly hold a property but the other three forms of unity are not applied, then, it is known as tenancy in common. Tenancy in common also does not work on the concept survivorship. Only unity of title is visible in this arrangement, while unity of possession, time and interest may not be present. As the concept of survivorship does not work, each tenant in common may transfer his interest in the property.
Noteworthy here is that unless a joint ownership agreement categorically talks about any other form of ownership in the agreement document, the ownership would be considered tenancy in common.
Tenancy in common example
Bothers Rahul, Nikhil and Akhil bought a property together in 2010. Since Rahul paid half the money, his share in the property is 50%, while the other two brothers hold 25% each. Since Rahul works in another city, only Nikhil and Akhil reside in the property at present. Upon his demise, Rahul plans to give his share in the property to their sister’s son, Aaryan.
The above-mentioned type of joint ownership must also work in accordance with the religion-specific laws, to have a legal validity. This is where the concept of coparcenary provided under the Hindu Succession Act comes into picture.
Joint ownership under the Hindu law: Coparcenary
The Hindu Succession Act, 1956, establishes the coparcenary form of ownership among members of Hindu Undivided Families (HUFs). This concept, which is similar to joint tenancy, allows an unborn child to have an equal share in an HUF property. After his birth, a coparcener becomes a shareholder of the property jointly held by the HUF.
As the coparcenary concept does not work on survivorship, a member’s undivided share in the property passes on to his heirs and not among the other coparceners at the time of his death. Also, a coparcener of an HUF can sell his share in the joint family property.
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Latika and Shivansh’s son Kunal was born posthumously. Although Kunal was born three months after the death of his father, he would inherit his father’s undivided share in his ancestral property governed under the HUF laws.
Understanding joint ownership of property
- There is no difference between joint ownership and co-ownership under any law.
- Both, joint tenancy with right of survivorship and tenancy in entirety, include survivorship rights.
- In ownership types where survivorship works, it continues until the last surviving owner owns the entire property. When the last surviving owner dies, the title is passed to the owner’s heirs.
- The Hindu law does not provide for different types of joint ownership.
- In a coparcenary property, every coparcener acquires an interest by birth.
What is tenancy in common?
In this sort of property ownership, co-owners do not specifically mention their share at the time of buying. In case of the demise of one co-owner, the ownership of the property will not automatically pass on to the surviving co-owner.
What is joint tenancy?
For a joint tenancy to be effective, all the tenants must buy property at the same time, through one sale deed, along with an equal interest in the property.
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