Co-Ownership of Property in Barbados

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Where a property, whether land alone or land with a building on it, is owned not by a single person but by two or more persons, this in law is known as ‘co-ownership’. Married or co-habiting couples are often co-owners of their matrimonial or quasi-matrimonial home; this is the most common instance, but it is not the only one, and co-ownership will exist where any two or more persons hold title to a property concurrently.

The legal rules regarding co-ownership in Barbados are really quite straightforward and any person contemplating joining with another in purchasing a property ought to be aware of them. Armed with such knowledge, purchasers will be in a position to plan the future devolution of the property and will instruct their attorneys accordingly.
The first point to be aware of is that there are two types of co-ownership in law, (a) ‘joint tenancy’ and (b) ‘tenancy in common.’ The most important difference in the effect of these two types of co-ownership concerns the ‘right of survivorship’. If X and Y have title to a property as joint tenants and one of them (X) dies, the survivor (Y) will become entitled to the whole property exclusively, with the result that none of the beneficiaries in X’s will or intestacy will have any claim to it. If, on the other hand, X and Y are tenants in common, and one (X) dies, the survivor (Y) will be entitled only to his (Y’s) share; X’s share will pass to the beneficiaries under his will or intestacy. In tenancy in common, the shares of each party may be equal (ie, 50% each, which is the usual case) or they may be unequal (eg 75% to X, 25% to Y).

Whether co-owners are joint tenants or tenants in common will depend on the terms of the original conveyance or grant to them. If the deed of conveyance grants the property ‘to X and Y jointly’, for example, or simply ‘to X and Y’, they will take as joint tenants and be subject to the right of survivorship and all its implications. If, on the other hand, the grant in the deed of conveyance is, for example, ‘to X and Y in equal shares’, such wording is said to contain ‘words of severance’, which is a technical expression meaning that the intention was that X and Y should each have their own shares in the property which on death can pass under their will or intestacy. Other instances where there will be a tenancy in common and not a joint tenancy are, first, where two or more persons purchase property by providing unequal contributions towards the purchase price and, second, where business partners purchase property, such as shop premises or a ‘buy-to-let’ residential property, for the purpose of their business.

Apart from cases of purchase for business purposes, when two or more persons decide to purchase a property together, it is important that they are clear as to whether they should opt for joint tenancy or tenancy in common. Do they wish that whichever of them outlives the other should, on the death of the deceased co-owner, have title to the property exclusively, or do they have in mind that a third party (such as a relative) should receive their share in the property after their death? If the former is the intention (as would normally be the case with married couples and in some settled relationships), then the right of survivorship will avoid probate problems for the survivor and any interference from the deceased’s executors and family members, as all that will be required for the survivor to acquire an exclusive title would be the notation of the death of the deceased joint tenant. Another point to note about a joint tenancy is that in law there is only one title, so that if the property is to be sold, leased or mortgaged during the lifetimes of the joint tenants, each joint tenant will be required to sign all relevant documents.

If, as we have seen, a co-owner envisages a third part inheriting his share of the property after his death, then a tenancy in common will be essential, as a joint tenant has no ‘share’ to leave in his will or intestacy. In purchasing the property, the co-owners should decide the exact shares to which they are to be entitled, though in the absence of an express allocation, the shares may be taken in proportion to the financial contributions of the parties to the purchase of the property. Another advantage of a tenancy in common is that, if there is a separation or disagreement between the co-owners during their lifetimes, and one or both of the parties wish to ‘realize’ their share, the property can be valued and arrangements made to sell it, so that each tenant in common will receive his/her share of the proceeds of sale.

One notable feature of both joint tenancies and tenancies in common is ‘unity of possession.’ This means that each co-owner has a right to possession of the entire property and to the use and enjoyment of it in a proper manner. No co-owner may mark off any part of the property as his own, or seek to exclude the other(s) from possession of any part. There was a well-known case in England (Bull v Bull, 1955) where mother and son purchased a house for their occupation as tenants in common; the son had provided two thirds of the purchase price, and the mother one third. After a number of years in occupation, the parties quarreled and the son sought to evict his mother. The court held that he could not do so; both parties had the right to possession of the property; the dispute could be resolved only by having the house sold and the proceeds divided into the proportionate shares, or by one party ‘buying out’ the other after obtaining a proper valuation.

The next important point is that, because of the element of chance or ‘lottery’ surrounding the right of survivorship, the law prefers the tenancy in common and accordingly permits a joint tenant to ‘sever’ the joint tenancy and convert it into a tenancy in common. Severance must be done in the lifetime of the joint tenant; he cannot sever by his will as, in the absence of a prior severance, the right of survivorship will immediately apply on his death. Severance of a joint tenancy can be accomplished in several ways, but in Barbados the easiest method is by ‘written notice’ to the other joint tenant under section 42(1) of the Property Act. A written notice may take almost any form, such as a letter or email communication to the other joint tenant indicating that the joint tenant wishes to convert the joint tenancy into a tenancy in common. The written notice may also take the form of an application for a court order or an affidavit sworn in connection with court proceedings. In Gibson v Walton (1992) a husband and wife purchased two apartment buildings which were conveyed to them as ‘joint tenants’. When the relationship eventually broke down, the wife applied to the court under section 191 of the Property Act for a determination as to her interest in the property, and the husband simultaneously swore an affidavit expressing a desire to sever the joint tenancy and to have the property sold and the proceeds distributed in the proper precautions. The husband later died, and the question was whether there had been a severance of the joint tenancy during his lifetime. The Barbados High Court held that the wife’s application and, alternatively, the husband’s affidavit were ‘written notice’ sufficient to sever the joint tenancy and to exclude the right of survivorship.

Dr Vanessa Kodilinye
Attorney-at-Law

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