Introduction

Ownership of land may be vested in a single person or two or even more. This essay
will discuss forms of co-ownership in land that existed at common law and will also
delve into all the legal attributes of each form of co-ownership. Lawyers everyday are
faced with legal issues when dealing with real property that is owned by more than one
person. These issues will be addressed in this essay.
Concurrent Co-ownership of Property
Concurrent co-ownership of land at common law describes an estate owned or
controlled by more than one person or entity. These are various ways that the real
estate can be co-owned, which affects the rights and liabilities of the individual owners,
but only when the property is conveyed either through a sale or after death (Dixon,
2014).1 Hinkel (2016)2 opines that the concurrent ownership of property is when two or
more people enjoy the rights of ownership of property at the same time, either freehold
or leasehold. The law regulating such type of ownership in found in the 1925 legislation,
common law. Megarry and Wade (1957) 3 opine that concurrent ownership is when more
than one person have rights in the same property at the same. Dixon (2014) 4 pushes
the argument further by saying that concurrent co-ownership of property describes the
simultaneous enjoyment of land by two or more persons. It entails the enjoyment of
rights of ownership by two or more persons at the same time. This means successive
interests in land, whereby two or more people are entitled to the enjoyment of land in
succession to each other.
The combinations of co-ownership on land are endless: married couples own homes
together, family members inherit real property together, partners join together in
commercial investment. Ownership of real property by more than one person raises a

Dixon M., Modern Land Law, 9th Edition, Routledge, 2014.

Hinkel D. F., Essentials of Practical Real Estate Law, 6th Edition, Cengage Learning, 2016.

Megarry R. E. and Wade H. W. R. The Law of Real Property, 1957.

Dixon M. Modern Land Law, 9th Edition, Routledge, 2014.

lot of legal questions (Megarry & Wade, 1984). 5 To decide what rights concurrent
owners and third parties who deal with these owners have in the real property, it is
necessary to determine how the concurrent ownership is held.
Forms of Co-ownership in Land
According to Megarry and Wade (1957), 6 there are four types of concurrent ownership
that existed at common law: (1) Joint Tenancy with the right of survivorship, (2) Tenancy
in Common, (3) Coparcenary and (4) Tenancy by Entirety. The old common law term of
tenant or tenancy, which is synonymous with the modern use of the word owner or
ownership, is still used to describe some of the types of concurrent ownership (Dixon,
2014).7
Joint Tenancy with the Right of Survivorship
Joint tenancy with right of survivorship is recognised at common law. It can be created
by a deed or will. It usually occurs when real property is transferred to two or more
persons with express language that they are to take the real property as joint tenants
with the right of survivorship, or similar language. Thus, when a joint tenancy is
desired, most instruments use the words: to A and B as joint tenants with the right of
survivorship, not as tenants in common (Dixon & Grifiths, 2009). 8 Dixon (2014)9
continues to say that under a joint tenancy with the right of survivorship each owner
owns an equal and undivided interest in the whole of the real property. Each owner has
the right to use and possess the entire real property. This right to use or possession is
held in common with the other owners.
The existence of a single ownership as a unit rather than as separate interests in the
individual units is the essence of joint tenancy with the right of survivorship. This
5

Megarry & Wade, The Law of Real Property, 5th Edition, 1984.

Megarry & Wade, The Law of Real Property, 1957.

Dixon M., Modern Land Law, 9th Edition, Routledge, 2014.

Dixon, M. J. and Grifiths, G., Land Law 2009 2010, 6th Edition, Routledge, Cavendish, 2009.

Dixon M., Modern Land Law, 9th Edition, Routledge, 2014.

emphasis on the estate as a unit led to the common law requirements that four items
interests, title, time and possession be present for the creation of a joint tenancy with
the right of survivorship. In other words, each owners interest must constitute an
identical interest, must accrue by the same conveyance, must commence at the same
time and must be held in the same undivided possession. At common law, if any of the
four unities itemised below is lacking in a conveyance, the estate is not a joint tenancy
with the right of survivorship, but is instead a tenancy in common (Cheshire & Burn,
1982).10
The Four Unities
1 The unity of interest means that each joint tenants interest in the property must be
of the same extent, nature and duration. Thus, all must be joint tenants of the
freehold or of the leasehold.
2 The unity of title means that as a matter of law all joint tenants must have derived
their title from the same document, even if there is more than one piece of paper.
This is well brought out in the case of Antoniades v. Villers in which the House of
Lords held that the two joint tenants derived their title from the same document even
though there were two pieces of paper.
3 The unity of time means that the interest of each joint tenant must arise at the same
time as befitting their ownership of a single unit. For example, if a woman purchases
a house in 1997 and, in 1999, on the occasion of her marriage, grants an equal
share in the house to her husband, this cannot be a joint tenancy for the interests of
the co-owners arose at different times. It would be otherwise if the entire house was
reconveyed into the joint names.
4 The unity of possession means that each joint tenant is entitled to physical
possession of the whole of the land. There can be no physical division of the land
and no restriction on any joint tenants use of each and every part of it. This includes
the right to participate fully in the fruits of possession such as receipt of rents and
profits derived from the land.
10

Cheshire & Burn, E. H., Modern Law of Real Property, 13th Edition, 1982.

Tenancy in Common
When two or more people own land under a tenancy in common, it is often said that
they have an undivided share in land, for example, one half, one fifth, even though the
land at present is undivided and treated as a single unit. It is still undivided and the
tenant in common owns a quantifiable share in it, which can be realised if and when the
property is sold (Dixon, 2014). 11 The distinguishing feature of a tenancy in common is
that each co-owner has a distinct and quantifiable share in the land. However, that does
not mean that a particular tenant can physically demarcate a portion of the land and
claim it as their own (Riddall, 2005). 12 Megarry and Wade (1984)13 proffer that that, for
tenancy in common, only unity of possession is essential for. There is also no right of
survivorship in tenancy in common. The deceaseds share will pass under their will or by
the rules of intestacy.
Coparcenary
A type of concurrent estate in real property by which property rights were acquired only
through intestacy by the female heirs when there were no surviving male heirs. This
type of estate, which has only historical value today, occurred when an ancestor left no
son who could take property by primogeniture (Riddall, 1998). 14
Tenancy by Entirety
This is a type of concurrent estate in real property held by a husband and wife whereby
each owns the undivided whole of the property, coupled with the right of survivorship so
that upon the death of one, the survivor is entitled to the decedent s share. A tenancy
by the entirety allow spouses to own property together as a single legal entity. Under a
tenancy by the entirety, creditors of an individual spouse may not cease and sell the
interest of a debtor spouse. Only creditors of the couple may cease and sell the interest
11

Dixon M., Modern Land Law, 9th Edition, Routledge, 2014.

12

Riddall J. G., Land Law 7th Edition, Oxford University Press, 2005.

13

Megarry & Wade, The Law of Real Property, 5th Edition, 1989.

14

Riddall J. G., Introduction to Land Law, 4th Edition, London, Butterworths, 1998.

in the property owned by tenancy by the entirety. Tenancy by the entirety can be created
only by married persons. A married couple in most cases is presumed to take the title to
property as tenants by entirety unless the deed or conveyancing document states
otherwise.
The most important difference between a tenancy by the entirety and a joint tenancy or
tenancy in common is that a tenant by the entirety may not sell or give away his interest
in the property without the consent of the other tenant. Upon the death of one of the
spouses, the deceased spouses interest in the property devolves to the surviving
spouse and not to other heirs of the deceased spouse. This is termed as the right of
survivorship. A tenancy by the entirety cannot be reduced to a joint tenancy or tenancy
in common by a conveyance of property. Generally, the couple must divorce, obtain an
annulment, or agree to amend the title to the property to extinguish a tenancy by the
entirety.