There are two types of Co-ownership that is common in Trinidad and Tobago; joint tenants or tenants in common. The use of the word “tenants” does not relate to leases but rather a form of Co-ownership. Whenever the Deed and/or Instruments do not state the type of co-ownership, there is a presumption in common law that the property is owned jointly. However, an equitable tenancy in common may be recognized in a joint tenancy by a Court of Equity where an intention to create a tenancy in common ought to be presumed (Megarry and Wade, The Law of Real property Tenth Edition, 12-021 at page [507]). The use of the word “equity” in this context means fairness. A Court of Equity is given its jurisdiction under Section 17 of the Supreme Court of Judicature Act which gives the Court a discretion not to enforce a person’s legal right. Although a tenancy in common may grant equal shares in property, a Court of Equity may recognize unequal shares using the principles of equity in certain circumstances.
A joint tenancy can only be created where four legal conditions, usually called the “four unities” exist.
- The unity of possession essentially means that all the joint tenants are entitled to the whole or any part of the property as the others and no one co-owner has a superior right or title over the other.
- The unity of interest means that each co-owner has equal interest over the whole property as the other co-owners.
- The unity of title requires each co-owner to obtain title to the property under the same act or document; and
- The unity of time means that each co-owner acquired the interest of the property at the same time.
The absence of any one of these four unities will create a tenancy in common.
Apart from the four unities, a joint tenancy operates under the right of survivorship. This simply means that upon the death of one co-owner, his or her interest passes to the other surviving co-owners until the last survivor holds the whole property as sole owner.
Although a deed and/or other registered instrument gives co-owners legal title either jointly or in equal shares, a Court of Equity can decide how to divide the property based on one owner's contribution to its increased value. (Leigh v Dickenson, Millet J (1884) 15 QBD 60 [page 1048G]). Consequently, an increase in value by one co-owner without consent or consultation by the other co-owner/s can be disregarded by a Court of Equity.
However, a Court of Equity may consider “occupation rent” to determine the proportion of shares to each co-owner. Thus, if A and B are paying a mortgage equally and B is not living in the property, B can make an additional claim because A has been living in the property rent free. If A has been contributing to the mortgage fully and B has neither been contributing to the mortgage or occupying the premises, B is entitled to the excess, provided the market rental value for the period goes beyond A’s contribution towards the mortgage.
Although co-owners in a joint tenancy cannot pass property, in whole or in part, under a Will or intestacy (where a person dies and does not leave a Will) a joint tenancy can be severed (meaning, converted into a tenancy in common) during the lifetime of the joint tenant. In the case of Williams v Hensman (1861) 1 J. & H. 546 at page 557, the Court identified three methods of severance. These are the act of any one of the joint tenants operating upon his own share, by mutual agreement or by any course of dealing sufficient to indicate that the interests of all were mutually treated as creating a tenancy in common.
If A, B, and C jointly own a property, A can transfer their one-third share to D through a registered deed. This ends A’s joint tenancy, meaning A loses the right of survivorship. D then becomes a tenant in common with a one-third share, while B and C keep their joint tenancy over the remaining two-thirds. D can pass their share to others upon D’s death through a Will or the rules of intestacy (legal rules that operate when a person dies without leaving a Will).
Submitted By:
Martin Joseph
Legal Officer
Civil Legal Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email:
Website: www.laaa.org.tt
This article is not legal advice. Consult an Attorney for legal issues
