By Okechukwu Otukwu, Esq., ACArb
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Introduction
When one acquires property in one’s lifetime, the fate of that property after the demise of the person is a matter of interest to the law. Basically, there are 3 things that may occur with respect to the property. One, the property owner may gift the property to a beneficiary while still alive. This is known as gift inter vivos. All that is required is that the property owner executes a deed of gift in favour of the beneficiary and the beneficiary accepts the gift. Once this happens, the title in the land passes to the beneficiary in perpetuity and the grantor or his successors-in-title cannot under any circumstances revoke the transfer. See Anyaegbunam V. Osaka (2000) LPELR-508(SC)pp. 24-25.
It is perhaps apt to mention here that many people do not favour this method of transfer of property to beneficiaries because of the fear of abandonment by the beneficiaries after receiving the gift.
The second thing that may occur is that the property owner may make a will while alive distributing his wealth and property to the beneficiaries named in the will. The will does not come into force until after the death of the testator and even so, the executors named in the will must first apply and obtain probate from the High Court of the State where the property is situate before dealing with the property. One important fact to note about a will is that it is ambulatory which means that, unlike gifts inter vivos, the testator reserves the right to alter the contents of the will, change beneficiaries or executors or completely revoke the will while alive.
Thirdly, the property can be a subject of intestacy, that is if the property owner dies without leaving a will or a valid will. In this case, the question would turn on the kind of marriage contracted by the deceased, whether it was a statutory marriage or a customary marriage. If it was a statutory marriage, then the Administration of Estate Law of the state where the property is situate or a similar law would apply. The Administration of Estate Law contains an order of precedence of persons that are entitled to apply for letters of administration to administer the estate of the deceased person. The first on the order is the spouse of the deceased followed by his children and then by parents before siblings of full blood and so on. On the other hand, if the deceased person contracted a customary marriage, the distribution of his estate would be in accordance with his personal law, i.e. the native laws and customs of his community.
One common factor that applies in both testate and intestate situations is that probate or letters of administration must be applied for and obtained before the estate of the deceased can be dealt with in any way. This necessarily involves a rigorous process of application to the High Court of the State where the property is situate and payment of fees calculated at a percentage of the value of the property in issue.
It is against the backdrop of the rigour involved in obtaining probate or letters of administration that we now look at joint tenancy as a less complex method of passing on property from the owner to his beneficiary without the disadvantage of outright gift inter vivos. Let me be quick to mention that tenancy here is not used in the sense of landlord and tenant arrangement but simply means ownership.
Meaning of joint tenancy
Joint tenancy is a type of co-ownership of property in which each tenant is equally and wholly entitled on the whole to the estate. See Burton V. Camden LBC (2000) 2 AC 399. In joint tenancy, there is no actual or abstract division of the land into shares, even on paper. For this reason, no joint tenant can point to any portion of the land as belonging to him.
One of the distinguishing characteristics of joint tenancy is the presence of the 4 unities. The 4 unities are possession, interest, title and time.
Possession
The unity of possession relates to the right of each joint tenant to the possession of the property as one undivided entity. In other words, each and every joint tenant is entitled to every part of the land as no portion or section of the land is exclusive to any of the joint tenant.
Interest
This unity is to the effect that the interest of the tenants is exactly the same in terms of extent, nature, and duration. No joint tenancy therefore can exist between a freeholder and leaseholder since the nature of their interest is not the same.
Title
The unity of title states that each of the joint tenants derives their title to the property from the same source or document, for instance a grant or a purchase.
Time
This unity is to the effect that the interests of the joints tenants in the property must have been invested at the same time.
Joint tenancy is to be contrasted with tenancy in common with which it may be confused. In Ugbene V. Ugbene & Ors. (2016)LPELR-42110(CA)@71, the Court of Appeal defined tenancy in common as arising where two or more persons hold the same with interest accruing under different titles or occurring under the same title but at different periods or conferred by words of severance importing that the grantees are to take different shares or where one disposed his interest to a stranger.
From the definition offered by the Court of Appeal, one can deduce that in tenancy in common, the 4 unities do not coexist. As a matter of fact, the only unity that exists in tenancy in common is the unity of possession.
While tenancy in common subsists, none of the tenants can point to any particular portion of the land as belonging to him; the distinguishing factor, however, is that the size of each tenant’s share is known even though it does not attach to any particular portion of the land until actual partition of the land. Where there is actual physical partition of land, what we have is neither joint tenancy nor tenancy in common but individual ownership of distinct parcels of land bordering each other.
Another distinguishing factor between joint tenancy and tenancy in common is the existence of right of survivorship in joint tenancy which is absent in tenancy in common.
Lastly, it is important to mention that there is a presumption in favour of joint tenancy where property is conveyed to several persons concurrently unless there are clear words of severance or the words could be reasonably be inferred from the instrument. See Shonekan V. Smith (1964)LPELR-25164(SC)@7. This makes it imperative for the drafter to be careful in drafting the instrument to avoid unintended consequences.
Right of survivorship
The right of survivorship (also known as jus accrescendi) is to the effect that each of the joint tenant has only life interest in the jointly owned property and that upon the death of any of the joint tenant, the property devolves to the living tenant or tenants, as the case may be. The property does not devolve to the estate of the deceased joint tenant and even if he included it in his will, the devise would be invalid.
For instance, assuming A, B and C are joint tenants of a parcel of land and along the line, A dies leaving B and C as his survivors, the interest of A in the property is totally extinguished and his beneficiaries cannot claim any right under the jointly owned property. This derives from the fact that A has no finite or identifiable share in the land to which the interest of his beneficiaries can attach. The situation would be the same between B and C. The only tenant that would have anything to pass on either by way of will or intestacy is the last surviving tenant. The last surviving tenant as the sole owner of the property also reserves the right to dispose of it inter vivos any way he deems fit.
A case in point is the case of Udok V. Udoekong (2020) LPELR-50067(CA). The summarized facts of the case are that the property in issue originally belonged to one Chief Thomas Udok who died intestate in 1962. Upon the demise of late Chief Thomas Udok, the property devolved to his male children. In 1985, the last two surviving male children namely Edem Thomas Udok and Ekong Thomas Udok obtained a letter of administration over their late father’s estate. In 1987, Edem Thomas Udok died leaving Ekong Thomas Udok as surviving male child of his father and the sole beneficiary of the estate. In 1989, Ekong Thomas Udok applied for and obtained a certificate of Occupancy over the property as the sole surviving beneficiary of the estate of his late father, his brother and co-administrator having died. He later sold the property to the respondent in the case. Sometime after his death, his nephews and nieces instituted an action against the respondent, claiming inter alia that the property was family property and that their uncle, Ekong Thomas Udok, did not have power to sell the property without their concurrence as the grandchildren of the original owner of the land who constituted other branches of the family distinct from Ekong Thomas Udok. When the matter came before the Court of Appeal, the Court reviewed the law on joint tenancy and the right of survivorship and held at pages 37-38 of the electronic report thus:
“…In the instant case, the two administrators, Edem Udok and Ekong Udok were the only surviving children of their father and the only beneficiaries. The property having not been shared till the death of Edem Udok, Ekong Udok automatically became the sole owner. The appellant can only have a right in his father’s estate and not that of his grandfather. In effect, the appellant is excluded from succession and the doctrine of survivorship aptly apply in the present case.”
One may ask what happens in a situation where the joint tenants die in circumstances where it is difficult to say which of the tenants survive the other to determine whose estate the property would devolve to. The commorientes or simultaneous death rule would apply. The rule states that when two or more people die in circumstances where it is not possible to determine the order of their deaths, the law presumes that they died in the order of seniority. This may occur in cases of accident, war or other natural disaster. Commorientes rule is codified in Section 164(2) of the Evidence Act, 2011 (as amended).
The right of survivorship prevails even though the joint tenant who has died purported to devise his interest in the property to a third party. Such devise would be invalid. See Chinweze V. Masi (1989) LPELR-851(SC)p.26.
Joint tenancy with its attendant right of survivorship is a convenient way of transferring property without having to go through the rigours of probate or obtaining letters of administration. The transfer of the property to the surviving tenant is automatic upon the death of the joint tenant. The issue of whether or not the joint tenant is dead can be proved by a death certificate. This leads us to look at ways by which property owners can leverage on the right of survivorship to transfer property to beneficiaries.
Leveraging on the right of survivorship to transfer property
One way by which the right of survivorship can be leveraged to transfer property is to create a joint tenancy between a land owner and his would-be beneficiaries during his lifetime. This can take place either at the time of acquiring the property or after the property has been acquired from a third party. Let’s look at a practical illustration of how this would work. Mr. White is a married man with two children. He acquires a parcel of land with himself and his wife and two children as joint tenants. Upon his death, the property devolves automatically to his wife and children without the need for probate or letters of administration. The same would happen when the wife dies – the property would devolve to the surviving children.
It is to be noted that a joint tenancy can be converted at any time into a tenancy in common by way of severance. Using our scenario above, assuming the property has devolved to the two children and they want to share it so that each person would have their own portion, a deed of severance can be executed by them. This would effectively terminate the joint tenancy and its attendant right of survivorship, otherwise the situation would be as we discussed above where the survivor of the two children would inherit the property.
It is important to point out that one of the effect of joint tenancy is that the jointly owned property cannot be alienated without the concurrence of all the tenants. In our scenario above, Mr. White would not have the power to alienate the property for any reason at all without the concurrence of his wife and two children despite the fact that he was the one that furnished consideration for the initial purchase of the property. This may sound like a disadvantage but in reality it is one of the merits of joint tenancy especially if the idea is to preserve family ownership of the property and to ensure that none of the family member would sell the property at the back of the others.
As mentioned earlier, a land owner may create joint tenancy over his property with his would-be beneficiaries even after he has acquired the property from a third party as a sole owner. All he needs to do in the circumstances is to prepare a deed to that effect, making his beneficiaries joint owners of the property.
Conclusion
There are many reasons people acquire property. There are also many reasons why they retain the property after acquiring same. Whatever may the case, a property owner has to make a decision while alive what will become of the property in the event of his death. As we have established in this article, joint tenancy offers one of the most flexible and convenient ways of passing on property from the owner to his beneficiaries without the stress of obtaining probate or letters of administration. It is also a buffer against intruders who may want to contest the ownership of the property of a deceased person against the true beneficiaries of the deceased.
*Okechukwu Otukwu, Esq., ACArb is a partner in Otukwu & Onwuka, LP., a full-service law firm in Asaba, Delta State. He can be reached on okechukwuotukwu@gmail.com or 08039510664.
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