TENANCY IN COMMON.

1.0          INTRODUCTION.

2.0          OBJECTIVE

3.0          CREATION OF TENANCY IN COMMON

4.0          WORDS OF SEVERANCE DENOTING TENANCY IN COMMON

5.0          DISTINCTION BETWEEN JOINT TENANCY AND TENANCY IN COMMON

6.0          DETERMINATION OF TENANCY IN COMMON

7.0          CONCLUSION

8.0          SUMMARY

9.0          TUTOR MARKED ASSIGNMENT

10.0       SUGGESTED ANSWERS

11.0       SUGGESTED FURTHER READING

INTRODUCTION TENANCY IN COMMON

Tenancy in common arises where more than one person is entitled to an estate. Where two or more persons are entitle to a property and words of severance are utilized, it translates to a tenancy in common e.g “To Osagie and Osayi share and share alike” or to “Nosa and Azuwa in equal shares”.

Words of severance connote that donees are at liberty to take their separate shares in accordance with the intention of the donor

OBJECTIVE

The objective of this unit is to acquaint students with the circumstances in which tenancy in common is deemed to arise with a view to drawing their attention to the distinction between tenancy in common and joint tenancy.

CREATION OF JOINT TENANCY

A tenancy in common is held to be created where

• Land is limited to two or more persons with words of severance showing the slightest intention that the donees are to take separate shares e.g “I give Iyekogba estate to Osaze and Igiehon to be divided in equal shares”.
• Where a joint tenant voluntarily disposes of his interest to a stranger or acquires an interest greater than that of his co – tenants
• Where equity reads what is at law a joint tenancy as a tenancy in common

WORDS OF     SEVERANCE       DENOTING         TENANCY  IN COMMON

Words of severance sufficient to create a tenancy in common include the following

• equally to be divided
• in equal shares
• equally
• amongst
• share and share alike

DISTINCTION         BETWEEN  TENANCY  IN     COMMON  AND JOINT TENANCY

There are fundamental distinctions between joint tenancy and tenancy in common. They include:

• Unity: The close knit relationship that exists in joint tenancy does not necessarily exist in tenancy in common. The only point of convergence is that in both cases, there is unity of
• Survivorship: The principle of jus accrescendi, is inapplicable to tenancy in common. tenants in common can alienate their interest either by conveyance, inter vivos or will. Where a common tenant dies intestate his interest passes to the heirs of the deceased.

Where Osaze and Osunde are tenants in common and Osaze dies. Osunde does not become the sole owner. Osaze’s share devolves on his heir.

• Partition: A tenancy in common may be voluntarily partitioned at common law or compulsorily partitioned under the partition Act 1868

A tenancy in common has been described as though ownership of  an undivided share, it is for all practical purposes a sole and several tenancy and each tenant in common stands towards his own undivided share in the same relation that if he were sole owner of the whole, he would bear towards the whole.

DETERMINATION OF TENANCY IN COMMON

A tenancy in common can be determined in any of the following manners

• Partitioning it among the donees
• sale
• The acquisition by one tenant whether by grant or by operation of law of the shares vested in his co – tenant whether by grant or by operation of law of the shares vested in his co – tenants.

 CONCLUSION.

Tenancy in common is preferable to Joint Tenancy because of the ease with which co – owners can sever the relationship. However in commercial relationships, joint tenancy is preferred because it enables the business to be a going concern as the property of the deceased owner simply passes on to the surviving owner.

SUMMARY

• Tenancy in common is created when words of severance are utilized in the sharing of an estate between two or more persons
• Tenancy is also created by selling, partitioning or by a partner in a joint tenancy arrangement acquiring a larger interest in the property
• Tenancy in common lacks the unity of title, time, interest and possessioned enjoyed by joint tenants
• Unlike Joint tenancy, where a tenant in common dies. The surviving tenant does not inherit his share of the estate but it devolves on this heir
• Tenancy in common can be severed by partition, sale, partition or acquisition of a larger share in the estate by one owner.
• A tenancy  in   common  can   be   compulsorily   terminated statutorily

TUTOR MARKED ASSIGNMENT

Distinguish between a tenancy in common and joint tenancy.

SUGGESTED ANSWERS

• The principle  of  survivorship  is   applicable  to  tenancy  in common but inapplicable to joint tenancies
• There is no unity of time of possession.
• There may be no unity of title in a tenancy in common unlike a joint tenancy where unity of title is mandatory
• A dislocated joint tenancy metamorphoses into a tenancy in common.

SUGGESTED FURTHER READING /REFERENCES

Elias T.O.   Nigerian Land Law (London: Sweet & Maxwell, 1971)

Burns E. H. Modern Law of Real Property (London: Butterworths 1982)