Blacks law dictionary1 defines land as an immovable and indestructible three-dimensional area consisting of a portion of the earth's surface,

the space above and below the surface, and everything growing on or permanently affixed to it. According to the Registration of Titles Act2, land is defined to include messuages, tenements and hereditaments both corporeal and incorporeal, and in every certificate as to title, transfer and lease issued or made under this act, Land also includes all easements and appurtances appertaining o the land described therein or reputed to the part of the land or appurtement to it. Joint tenancy According to Land law3, it is deemed to exist where two or more persons own the entire interest in the property without any distinct shares therein. In the book Principles of land law in Uganda4it is defined as where two or more persons together as a group own the entire interest in the property. The Oxford Dictionary of law5defines a joint tenancy as one where ownership of land by two or more persons who have identical interests in the whole of the land. The essence of a joint tenancy was expressed by Lord Browne Wilkinson in Hammersmith L.B.C v Monk6 where he stated that; In Property law, a transfer of land to two or more persons jointly operates so as to make them vis--vis the outside world one single owner. In the case a tenancy was held by the joint tenants. One of the tenants gave notice to the land lord to terminate the tenancy, but did not inform the other tenant of this. The uninformed tenant did not leave the property, and the counsel sought possession of the property. It was held by the House of Lords that the joint tenant can unilaterally terminate a periodic joint tenancy by giving proper notice to quit, unless there is an express term of the contract. Possession was granted to the counsel. For a joint tenancy to hold its ground, four unities have to be satisfied as was clearly stated in the case of James Katuku and 8 others V Kalimbagiza7. In the case, court held that if a person is admitted as a joint tenant, his right of possession, interest, title and time over the land is the same as those of the offeree.

1 2

8th Edition, pg 2559 Cap 230 3 John Stevens and Robert A. Pearce: Land Law, 2nd,London,Sweet and Max 4 John T. Mugambwa: Principles of Land law in Uganda, Kampala, Fountain Publishers, 2002. 5 Oxford Dictionary of Law, 5th Edition, 2003. 6 (1992)1 AC 478 7 (1987)HCB 75

Unity of possession Each joint tenant is as much entitled to possession of any part of the land as the others8. One joint tenant cannot exclude others from any part of the land. No joint tenant may ever delineate any part of the land as being his to
the exclusion of the other co-owner or prevent another co-owner from taking his appropriate allocation of the rents and profits derived from the land. Between joint tenants the concept of internal physical boundaries and the consequent idea of trespass have no meaning except in the sense that any ouster or interference with anothers rights over the co-owned whole constitutes an actionable trespass9. The

facts of Bulls case, in 1949 the plaintiff, Bull, with his mother purchased a dwelling house as a home for themselves. The son provided the greater part of the purchase money and the conveyance was made out of his name, it being the intention of the parties that the house should be a home for both of them. And thus the mother did not intend to make a gift to the son of her part of the money. After they had lived together for 4 years, the son married and it was that the mother should have two rooms in the house and the son and his wife should occupy the rest of the house. Soon afterwards disparities arose between the mother and the daughter-in law for which the son (plaintiff) gave the mother a notice to quit. The mother refusing to leave forced the son to take legal action for the possession of the two rooms, contending that the mother was a mere licensee and that the licence having been revoked by a notice to quit she was a trespasser. The court held that the mother was an equitable tenant in common with the son and that until the house was sold each of them was entitled concurrently with the other, the possession of the premises and that neither of them was entitled to turn the other out. Unity of title Joint tenants must derive their title to the land from the same documents or act. Where the title is from a will then it must be the same will. Lord Jauncy of Tulli Chettle said thus, I should be surprised indeed if a joint lease could be created by four
separate documents of different dates in favour of four independent persons each paying a different rent and also for a different period of 6 months . Such an

8 9

Bull v Bull [1955]1 QB 234 Gray and Gray, Elements of Land Law 4th Edition, Oxford University Press, 2005. Pg1031

arrangement would as Sir George Wallen point out to be notably deficient in the four unities of interest, title, time and possession.10

Unity of Interest Joint tenants should have the same interest in the extent, nature and duration in the land. In the case of A.G v Vaughan11, thee appellants owned a four bedroom house under separate contracts entered into at different times. They granted the right to occupy the flat to four individuals referred to use the flat sharers. The court held that the agreements entered into by the appellant with the four occupants whereby the each occupant had exclusive possession of one bedroom and share the remainder of the accommodation did not have the effect of creating a collective joint tenancy among the occupants of the flat. For the time being by virtue of their having between themselves exclusive possession of the flat, since the agreements were independent of one another commenced on different periods and provided for different payments for that occupation. Unity of time This regards that the interests of the joint tenants must have been acquired or vest at the same time. Other than the unities, joint tenancy bares another aspect that is a prime distinguishing factor from a tenancy in common. Survivorship Where one joint tenant dies, any interest held by that joint tenant will automatically pass to the remaining joint tenants. The section 57 of Registration of Titles Act12in this regard states that upon the transfer of land and upon the lease of any freehold land two or more persons as joint proprietors with the words no survivorship endorsed on the transfer of the lease, the registrar shall enter these words in the memorial of that transfer or lease and also upon any certificate of the title issued to the joint proprietor pursuant to the transfer and sign his or her name thereto. In Elements of Law13,

10 11 12 13

Page 1076, paragraph (g) [1988]3 AllER 1058 (HC) Gray and Gray,op.cit

It has been said that the right to survivorship (IUS ASCRESCENDI) is the
grand and distinguishing incident of joint tenancy. On the death of anyone joint tenant the entire co-owned estate survives to the remaining joint tenant or tenants. Ultimately, in the manner of the medieval tontine, the surviving joint tenant becomes the sole owner- the winner takes all. This concentration of ownership was elegantly described by Blackstonewhen two or more persons are seized by a joint estatetheir entire tenancy upon the decease of any of them remains to the survivors, and at length to the last survivor the interest of the two joint tenants is only equal or similar, but also is one and the same. One has not originally a distinct moiety from the other...but eachhas a concurrent interest in the whole, and therefore, on the death of his companion, the sole interest in the whole remains to the survivor.14 It was expressed in the case of Admin.

General of Zanzibar V Khalfan15where Soud Bin Ali the father was an old blind man died in a common calamity with his son, Hamond Bin Soud when their house was attacked by a mob. A witness Munira Binti Khanis gave evidence that the father left the house first was slashed with sticks and eventually killed by the mob. He was followed by his son who was struck on his head but walked back into the house. That was what the witness last saw the son and considered that the father was dead when she left because he was being assaulted there and there was no evidence when Hamond. The issue was among others whether the son Hamond Bin Soud survived his father, Soud Bin Ali? The court in its holding rejected the presumption that the younger survives the older. And the rule is that in the event of death of joint tenants in a common calamity, their respective heirs would inherit the land as if the deceased owned the land in a tenancy in common. Accordingly, the court ordered that Souds brother be entitled to a given fraction of the estate. Tenancy in common It is a specific type of concurrent or simultaneous ownership of real property by two or more parties. Tenants in common hold land in individual shares (distinct shares in the property). This entails that each party has the right to alienate or transfer the ownership of interest. This can be done in a deed, will or other conveyance. In the case of East African General Insurance Company Limited V Ntende and others16 it was held that what makes the parties co-owners is that they have shares in a single piece of land though the land is not physically divided among
14

Gray and Gray, Elements of Land Law, 4th Edition, Oxford University Press, 2005. Pg 1024 15 (1963) E.A 230 16 Cs No.1387 of 1975;1979 HCB 225

them. Further in the case of Calverley V Green17, the appellant and respondent lived together as de-facto spouses. Together they bought a house which they intended to be their matrimonial home and it was registered in their names in joint tenancy. The courts held that they both held their beneficial interest in the house as a tenancy in common in shares equal to their contribution. 1. Distinguish between a joint tenancy and a tenancy in common. Unlike joint tenants, tenants hold undivided but distinct shares in land. What is more is that whereas all the four unities of possession, time, interest, and title must exist at all times in a joint tenancy, only the unity o possession is essential in a tenancy in common. The superlative disparity is the principle of survivorship which has no application to people who are tenants in common. Their respective shares will not pass automatically to the other tenants on death and can be instead be respectively dispersed off by will or in the event of intestacy will pass on persons thereby entitled. However, the principle applies to joint tenancy. 2. What grounds could be relied upon to rebut a joint tenancy? There are a number of modes in which one can controvert a joint tenancy as discussed below; Severance: where joint tenants effectively separate their equitable interest from that of other joint tenants. Where a joint tenant does sever his share in equity, he will be entitled to a proportionate share of the property depending upon the number of tenants. There can never be severance in law of the legal estate. To compact severance, it describes the process whereby joint tenancy is converted into tenancy in common. Sir William Page-Wood in his statement in Williams V Hensman18 declared three ways of severance of a joint tenancy: unilateral action, mutual agreement and course of dealing of the co-owners. In Harris V Goddard19, Dillion L.J stated that,
Severance is the process of separating off the share of a joint tenant, so that the concurrent ownership will continue but the right of survivorship will no longer apply. The parties will hold separate share as tenants in common

Union in a sole tenant: joint tenancy may be rebutted where the whole of the land becomes vested in a single beneficial owner. Therefore where one of two surviving joint tenants dies, the other becomes sole tenant by right of survivorship (jus accrescendi). Under s.201 of the
17 18 19

(1984) 155 CLR 246 (1861)J&H 546;70 ER 862,at 867. [1983]1 WLR 1203

Registration of Titles Act, the survivor may apply to the registrar to be registered as the sole proprietor of the land and upon registration he or she is deemed to be the proprietor thereof. Similarly, if one joint tenant acquires interests of all the other tenants such as by purchasing from them, the co-ownership comes to an end. Release: Because in theory each joint tenant is seized of the whole of the land, appropriate way for one joint tenant to transfer his rights to another joint tenant before 1926 was by deed of release, which operated to extinguish his interest. Thus if A, B and C are beneficial joint tenants and A releases his beneficial interest to B, who goes ahead to acquire As one third share as equitable tenant in common, he remains joint tenant with C as to the other two thirds.

3. What is the all or nothing implication in a joint tenancy? Basically in joint tenancy the ownership of land is vested in the co-owners wholesomely. However when one party dies the other party or parties gains all the ownership of the property and for the other party gains nothing because there are no benefactors to his share in the land. In other words, in a situation where the deceased joint tenant had a will, the joint tenancy takes precedence over the will. The end result of such a relationship is that the benefactor goes empty handed as the party in the joint tenancy gains all ownership in the form of sole ownership. In the end, it is right to say that the principle of survivorship and the presence of the four unities draw the line between a joint tenancy and a tenancy in common. However, it is true that a joint tenancy takes precedence over any disposition made by a joint tenants will. The messiah to rebut a joint tenancy comes in the form of various situations such as severance, release among others that out rightly tag the relationship as one of a tenancy in common where equitable ownership of land by two or more persons in equal or unequal undivided shares, saves the day.

BIBLIOGRAPHY
ACTS The Registration of Titles Act, Cap.230. The Land Act, 1998 Cap 227 (as amended)
6

BOOKS John Stevens and Robert A. Pearce: Land Law, 2nd Edition. London, Sweet and Maxwell, 2000. John T.Mugambwa: Principles of Land Law, Kampala, Fountain Publishers, 2002*. Elizabeth A. Martin MA (axon): Oxford Dictionary of Law, 5th Edition, 2003. Gray and Gray: Elements of Land Law, 4th Edition, Oxford University Press, 2005. Judith Bray: Unlocking Land Law, 2nd Edition, Hodder Education, 2007. CASES Bull V Bull [1955]1QB 234 James Katuku and 8 others V Kalimbagiza (1987) HCB 75 Hammersmith V Monk (1992)1 AC 478 A.G Securities V Vaugham [1988]3 AllER 1058 (HC) The Administrative General of Zanzibar V Khalfan (1963) E.A 230 East African General Insurance Company Limited V Ntende and others Cs No.1387 of 1975; 1979 HCB 225 Williams V Hensman (1861) J&H 546; 70 ER 862, at 867.

UGANDA CHRISTIAN UNIVERSITY

NAME KANYAMUYENGA JUNIOR KAJUBI BRIAN
7

REGNO JIIBII/318 JIIBII/312

KAMULEGEYA ROGERS KANSIIME GIDION KAJWARA CHRISTOPHER KALITANI TONNY BUTAHO KAKEMBO WILLIAM KADDU DENNIS KABUYO HOPE KAKURU GODFREY GROUP 3

JIIBII/337 JIIBII/317 JIIBII/313 JIIBII/324 JIIBII/314 JIIBII/345 JIIBII/344 JIIBII/315

QUESTION: At common law there was a presumption that arrant of a legal interest on land to two or more persons a joint tenancy .However this presumption could be rebutted on the other hand ,given the all or nothing nature of joint tenancy ,equity preferred to regard such parties as tenants in common. 1 .Distinguish between a joint tenancy and a tenancy in common 2. What grounds would be relied upon to rebut a joint tenancy? 3.what is all or nothing implication in joint tenancy?