Tenancy in common and joint tenancy are the two most common forms of co-ownership of property in Kenya and across the world. It is required that where two or more persons hold an estate or interest in land, they must specify the nature of their tenancy, that is, if they are joint tenants or tenants-in-common. While they share similarities, they have key differences that affect ownership rights, inheritance, and how interests in the property are divided
Tenants-in-Common
Tenancy in common is a form of property ownership where two or more individuals hold an undivided interest in the property. Each co-owner (tenant in common) owns a specific percentage of the property, which may be equal or unequal. However, where no share is stated then the presumption is equal shares, that are 50/50.
A tenant in common does not possess a right of survivorship. This means when a tenant in common dies, his interest in the land passes under the terms of his will. Where there is no will, the interest of the deceased is distributed under the Intestate Estates and Property Charges Act.
For instance, a mother and her two children buy a plot of land together. The mother owns 50%, while each child owns 25%. If the mother passes away, her share is inherited by her heirs (according to her will or intestacy laws), not automatically by the children
The tenant-in-common has an equal right to the possession of the whole property but not a right to possess any part exclusively. However, they are free to use their interest in the property as they deem fit.
What are the advantages of a Tenancy in common?
Flexibility in Ownership: Co-owners can hold different ownership percentages.
Freedom to Transfer: Each owner can sell, gift, or will their share without needing permission from others.
Ideal for Investment Purposes: Suitable for business partners, friends, or relatives who want to co-own property without automatic survivorship
What are the disadvantages of a Tenancy in common?
No Right of Survivorship: If an owner dies, their heirs inherit their share, which may complicate co-ownership.
Potential for Disputes: If an owner wants to sell but others do not, legal conflicts may arise.
Division of Property Might Be Complex: If one owner wants to exit, selling their share may not be easy.
For instance, if three siblings inherit their father's property as tenants in common and one decides to sell their share to an outsider, the other two will co-own the property with a stranger.
Joint Tenants
Joint tenancy is a form of property ownership where two or more individuals hold equal shares in the property, with the distinguishing feature of the right of survivorship. In this regard, when one joint tenant dies, their share automatically passes to the surviving joint tenants.
In effect, a joint tenant does not have an interest in the land that he/she can leave in a will unless he or she is the sole surviving joint tenant.
Ownership under joint tenancy is created and maintained under the four unities:
Unity of Possession: All owners have equal rights to use the property.
Unity of Interest: Each joint tenant has an equal share.
Unity of Title: Ownership must be acquired through the same transaction.
Unity of Time: All co-owners acquire ownership at the same time
What Are the Advantages of Joint Tenancy?
Right of Survivorship; The property automatically passes to surviving owners, avoiding probate.
Equal Ownership: Ensures fairness among joint owners.
Security for Family Members: Suitable for spouses as ownership remains within the surviving partner.
What are the Disadvantages of Joint Tenancy?
Less Flexibility: A joint tenant cannot sell or transfer their share without dissolving the joint tenancy.
Risk of Unintended Ownership Transfers: If one owner dies, their heirs do not inherit their share.
Credit and Liability Risks: If one owner has financial problems, creditors can claim the entire property.
Between Tenancy in common and Joint Tenancy, which Form is Better?
For business partners or unrelated individuals, tenancy in common is better since it allows each owner to have independent control over their share. For family members (spouses, parents, and children), joint tenancy may be preferred due to its right of survivorship, ensuring the property remains within the family without legal complications.
