By Khaemba Wafula

Tenancy, as a word, is mainly associated with renting or leasing premises for purposes of business or residence and the landlord-tenant relationship. However, when it comes to co-tenancy, the meaning becomes different from what is publicly known. 

What is co-tenancy?

Co-tenancy is a concept around land ownership where two or more people are registered as owners of a parcel of land or property. This is also known as co-ownership in a simpler way. This type of ownership dictates that several people own property but under the condition that the property is held in undivided shares. Each co-owner has the same right and interest in the property regardless of the number of shares. The title presented after registration indicates that all the parties put on the title are equal co-owners. 

What are the characteristics of co-tenancy described by the courts?

The four unities that the courts use to determine if a property is held under co-tenancy are as follows;

• the unity of possession;
• the unity of interest; 
• the unity of title; and 
• the unity of time

In unity of possession, all co-owners have equal rights and interests regarding accessing and using the property. One co-owner cannot sue another co-owner for trespass or adverse possession.

In unity of interest, all co-owners have the same right and interest in the property regardless of the number of shares the co-owners have agreed on during the purchase.

Unity of title refers to the concurrent registration of interest in one property. This means that the property is held by different individuals who have come as one but registered under one title or conveyance instrument.

Unity of time refers to different individuals owning the same property. At no time will there be an individual interest registered.

What are the types of co-tenancy?

Co-tenancy comes in two forms; joint tenancy and tenancy in common. People need to define the type of co-tenancy they wish to register since each type has different characteristics, especially in succession matters. These two forms of co-tenacy are discussed further for better understanding below.

Tenancy in common/common tenancy

What is tenancy in common?

This is a type of co-tenancy where two or more people come together and acquire an interest in a property and is primarily popular with chamas and cooperative societies. One of the characteristics of tenancy in common is that a co-owner can decide to alienate or transfer their interest in the property. In this situation, the concept of undivided shares is put aside, and the shares of the co-owner that wishes to alienate or transfer are determined so that the transferor can materialize a figure of consideration. Chamas and cooperative societies have constitutions that indicate the shares held by each member and co-owner in this case. The tenancy in common will continue after the transfer of shares to the new co-owner.

What happens to a tenancy in common in the event of the death of a co-owner?

Death is an inevitable phenomenon. Death can happen to one of the co-owners in a tenancy in common, and there are laws and rules set to handle such a situation. When a co-owner becomes deceased, their share of the property forms part of their estate. This means that the shares of the deceased co-owner have to be determined, and these shares will pass down to the rightful beneficiaries of the dead through a succession cause. 

The representative of the estate of the deceased co-owner will be required first to obtain a grant of probate and confirmation of the grant. These documents will be presented to the land registrar, who will register the beneficiary as the new co-owner of the property. This process is known as transmission.

Inheritance of shares does not interfere with the life of a tenancy in common.

What could terminate a tenancy in common?

The following factors can lead to the termination of a tenancy in common;

• One or more co-owners purchase the other co-owners.
• The property is sold, and the co-owners split the revenues.
• A partition action is brought, allowing an heir to the shares in the tenancy in common to sell their shares to the other co-owners. The other co-owners can convert the holding to a joint tenancy by a written instrument. 

Joint tenancy

What is joint tenancy?

Joint tenancy is similar to tenancy in common, although a transfer or alienation of shares brings the joint tenancy to an end. The concept of undivided shares is effective in joint tenancy, which is also applied in succession matters relating to land or property registered as joint tenancy. This is a common co-tenancy that couples enter into. Courts have established that there is a presumption of entering into a joint tenancy by a spouse where a property is acquired for co-ownership. The only thing that can dispute this presumption is a certificate of ownership stating that one spouse is solely taking the land in their name. 

What happens to a joint tenancy in the event of the death of a co-owner?

The survivorship doctrine characterises joint tenancy. In joint tenancy, survival doctrine means that if one co-owner dies, the property automatically devolves to the co-owner who has survived the deceased co-owner. Unlike tenancy in common, the shares of the deceased co-owner will not be subject to succession, and beneficiaries will not inherit the shares in the property. For example, a property is co-owned by man and wife. If one of the spouses dies, the surviving spouse will be the automatic owner.  

For the title to fully devolve to the surviving co-owner, they must visit the land registrar with proof of the deceased’s death and fill out an application to have the name of the deceased co-owner struck out of the title. The registrar will strike out the name of the deceased co-owner, retain the surviving co-owner’s name on the register, and grant a new title with the changes effected.

What could terminate a joint tenancy?

The following factors can lead to the termination of a joint tenancy 

• A transfer or alienation of shares. If one co-owner decides to transfer their shares to a third party, the holding ceases to be a joint tenancy, and it evolves into a tenancy in common.
• Death of a co-owner. In the scenario where the registered parties are two, and one co-owner dies, the holding is no longer considered a joint tenancy because there is only one proprietor left.