Property Lawyers in Jamaica on Joint Tenancy vs Tenancy in Common

As property lawyers in Jamaica, one of the most common questions we get when more than one person is buying a property is how we should purchase it. Should we purchase as joint tenants or tenants in common?

When two or more persons are buying a property together, they must make a very important decision regarding the type of co-ownership they wish to put in place. There are two main ways in which two or more people can own a property, and it is vital that you understand the differences before making a choice; these are – Joint Tenancy and Tenancy in Common.

Joint Tenancy

Property lawyers in Jamaica will tell you that Joint tenancy means that all parties have a 100% share in the entire property. This means that each person’s share in the property is not defined as a fraction but as a whole. This means that no joint tenant can leave the property in any Will since once he or she dies the other joint tenant becomes the owner of the entire property almost automatically. This is the most important characteristic or consequence of the joint tenancy and it is called the right of survivorship, whereby when one joint tenant dies, his interest in the property effectively disappears. No part of the property can be transferred to anyone else under the deceased’s will nor the rules of intestacy (if no will exists). The surviving joint tenant is left automatically owning the whole of the property. He may avoid this result by severing his joint tenancy during his lifetime and converting himself into a tenant in common with a distinct share, which can pass under his will or intestacy.

In the event of a sale during the joint tenants’ lifetimes, the general rule is that they will be entitled to equal shares of the net sale proceeds, even if one has made a greater contribution. However, there are exceptions to this general rule, which may arise in divorce proceedings and can also be imposed by the court on the contentious separation of long-term partners.           

Example: Jacinta and Oliver owned their home as joint tenants. This means they both owned 100% of the home. Oliver died last week. This means the property has now passed to Jacinta, and she is now the only owner of the property.

Elements

For a joint tenancy to exist, the four ‘unities’ must be present. They are unity of possession; unity of interest; unity of title and unity of time.

Unity of Possession

This means that each joint tenant is entitled to physical possession of the whole of the land. Therefore, no joint tenant may take possession of any portion of the land for himself.

Unity of Interest

Each joint tenant’s interest in the property must be of the same extent, nature, and duration since it would be inconsistent with the nature of a joint tenancy for the tenants to have different interests. Thus, for instance, both must be freeholders or both leaseholders, and both must be entitled in possession or both in the remainder.

Unity of Title

This means that the joint tenants must have derived their titles from the same document (for instance, from the same will or conveyance), or where they claim the title by adverse possession, they must have taken possession simultaneously.

Unity of Time

The interest of each tenant must vest at the same time.

Earlier, it was mentioned that a joint tenant may avoid the consequence of the right to survivorship by severing his joint tenancy. A joint tenancy can be broken if a joint tenant transfers or sells his interest to another person, thus changing the ownership arrangement to a tenancy in common for all parties. 

Tenancy in Common

Property owned by tenants in common is owned jointly but each tenant in common owns a specific share of the value of the property. There is no right of survivorship, thus each tenant in common can deal with their share independently. For example, on death, their share passes to whoever is entitled under the deceased’s will or by virtue of the operation of the rules of intestacy (where the deceased did not leave a will). A tenancy in common usually arises where the property is granted to two or more persons with words of severance, such as ‘in equal shares’, ‘equally’, ‘shares respectively’, and ‘to be divided amongst.

A tenancy in common can be broken if one of the following occurs:

• One or more co-tenants buy out the others
• The property is sold and the proceeds distributed among the owners
• A partition action is filed, which allows an heir to sell his or her stake. At this point, former tenants in common can choose to enter into a joint tenancy via written instrument if they so desire.