Attorney-at-Law Sherry-Ann Mcgregor

The topic of this week's article was triggered by questions from a reader about real property (ie, land and buildings). He first asked: "What happens to property when one of two joint owners dies?"

Two factors determine the answer:

1. Was the property owned by the parties as joint tenants or as tenants in common?

2. The nature of the relationship between the owners.

Joint tenancy vs tenancy in common

If the property is owned by joint tenants and one co-owner dies, the deceased owner's share will pass to the survivor(s) by virtue of "the right of survivorship". If the property is owned by tenants in common, it will be inherited by the deceased person's beneficiaries in accordance with his will or, if he dies intestate, his dependants will inherit the property pursuant to the rules of intestacy.

The main distinction between joint tenancy and tenancy in common relates to the ability of one of the co-owners to dispose of the property by sale or under a will. Whereas one of several tenants in common is able to sell his share of the property at any time, use it as security or make provision under his will for it to be transferred to a beneficiary, the same is not true for joint tenants. There must be concurrence among all joint tenants for property to be sold or used as security, and one co-owner is not entitled to dispose of the property under his will.

The Property (Rights of Spouses) Act

The second aspect of the response is affected by the above act. According to section six of that act, if spouses own the family home as tenants in common and one dies, the survivor is entitled to a 50 per cent share in the family home. This was not so before the act came into effect, because it was not necessarily true that each co-owner had an equal share in property which was held as tenants in common.

The next question is, "What would occur if one co-owner wanted to sell the property and the other refused to do so?" This situation usually prompts an application to the court to sever a joint tenancy or to partition a tenancy in common. On either of those applications, orders might also be sought for the property to be valued and the interest of one party sold to the other or to a third party. Another option would be for the court to order the sale of the entire property to a third party.

When the court has to intervene in such a situation, it is usually best to obtain an order for the registrar of the Supreme Court to be empowered to sign any documents necessary to complete the sale, since one of the joint owners may still refuse to do so.

Since it is quite costly to adjust property ownership, it is advisable to consider the options very carefully before deciding on how the property is to be held.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.