Advantages of property ownership

By Harold Ayodo

Joint ownership of property is gaining fast popularity among partners who pool resources to invest in real estate.

Some spouses who purchase property together also prefer to register jointly to avoid court battles over ownership after the death of one partner.

Joint tenancy (ownership) of property is a form of ownership where two or more registered investors have whole rights in the property.

Police officers at the Deepwest Resort. The club is at the centre of an ownership battle. Photo: Mbugua Kibera/Standard

The increasing social recognition of the emancipation of women encouraged this form of ownership during the 1940s in the United Kingdom (UK).

Kenya borrows several laws from UK — including the Common Law and the Doctrines of Equity as provided in the Judicature Act.

Land law provides that no joint tenant holds a specific share or more than his/her co-owner as long as they are registered.

The features of joint ownership include unity of possession where each partner is entitled to the whole property and none can be accused of trespass.

Ownership and tenancy

Other hallmarks are the unity of interest, title and time that provides that the interest for each co-owner must vest at the same time.

Joint ownership is different from tenancy in that co-owners hold distinct shares of property and rights can be transferred by a will.

A characteristic of joint ownership averts court battles over property following the legal theory of Jus Accrescendi — the right of survivorship.

The right of survivorship provides that a co-owner automatically becomes the owner of the whole property following the death of his/her partner.

The right of survivorship provides that if there are three owners and one dies then he loses his rights to the surviving two.

It does not matter whether a joint owner dies testate or intestate — after writing a will or not on how his share of property should be distributed.

An arrangement in a will of a joint tenant is ineffective in respect to any land, which their joint tenancy relates as he has no specific share to pass on after his death.

Property lawyers concur that joint ownership is almost an exclusive form of matrimonial or quasi-matrimonial tenure.

Rights of survivorship

The right of survivorship has several advantages including avoidance of the several legal succession court cases over ownership after the death of a joint owner. Other advantages include immunity of a surviving joint tenant from unsecured debts incurred by the co-owner when alive. However, if the debtor is the survivor then creditors have access to the entire property formerly held under joint ownership.

The law, however, prevents joint owners who eliminate their co-owners in order to own the whole property — this is under the doctrine of severance.

Severance is the process of separating off the share of a joint tenant for concurrent ownership to continue in place of the right of survivorship.