What is Co-ownership of property ?
Co-ownership or joint ownership means when two or more persons hold title to the identical property. Co-owners of a property mean all the owners of that exact property. Any co-owner can transfer his/her personal share in such property to a co-owner or perhaps a stranger which ends therein transferee getting into the shoes of the co-owner. A co-owner generally has the proper to possession, right to use, and even dispose off the property.
What are the kinds of co-ownership?
There are some forms of co-ownerships. These are explained below:
1. Tenants in Common – When two or more people buy a property but don’t specifically mention the share that every has within the property, “tenancy in common” is alleged to exist. All the co-owners can use the complete property and each co-owner is deemed to be having an equal share within the property.
Each “tenant in common” features a separate fractional interest within the property. However, each “tenant in common” may possess and use the whole property. Each “tenant in common” can freely transfer his/her interest in such property.
Tenants in common haven’t got the correct of survivorship. Hence, if one dies, his/her interest passes by way of Will or through laws of intestacy to a different individual who can then become a tenant in common, together with the surviving co-owners.
2. Joint Tenancy: Joint tenancy may be a kind of co-ownership where the property is owned by two or more persons at the identical time in equal shares. This sort of tenancy provides rights to ownership of the property for the co-owners who outlive other co-owners. Joint tenancy entails the correct of survivorship. If one such co-owner dies, it’s immediately passed on to the surviving/other joint tenants.
All the joint tenants have one unified interest within the whole property. The joint tenancy must have undivided interests within the entire property, and not divided interests into separate parts. A joint tenancy will be created by a Will or a Deed. Each joint tenant should have estates of the identical type and duration also.
3. Tenancy by the entirety: this could be a special variety of joint tenancy when the joint tenants are namely the husband and wife with each owning one-half. To exist, tenancy by entirety requires the 2 co-owners to be married i.e., husband and wife.
Under this kind of co-ownership, nobody spouse is allowed to convey or transfer his/her interest to a third person. However, the husband or the wife can convey his/her share to their spouse. A tenancy by all can only be terminated by way of a divorce, death, or a mutual agreement between the husband and wife. Such terminated tenancy becomes a tenancy in common.
In Konchunju Nair v. Koshy Alexander (1999) it was held that if a co-owner wants to erect a home on the land he’s unengaged to do so. If division of co-ownership of property takes place, the co-owner can claim, that, the said property be allotted to his share. The Court would ordinarily grant such an equitable right.
What are laws associated with the transfer of property by a co-owner?
Section 44 of the Transfer of Property Act 1882 deals with transfer by a co-owner and it also deals with the rights of a transferee during this style of transaction.
According to this Act, every joint or co-owner features a proprietary right the whole property. Hence, any sale should be through with the consent of all co-owners involved. If, however, there are specific conditions within the agreement that provides co-owners exclusive rights to certain parts/portions of the property, a co-owner can sell his portion to whom he chooses.
In Balaji Anant v. Ganesh Janarthan (1926), Westropp C.J, observed as follows:
We deem it a far safer practice to depart a purchaser to a suit for partition than to put him by force in joint possession within the Hindu Family, which can be not only of a distinct caste from his own, but also different in race and religion.
In order to grant relief under section 44 there should be two things satisfied-
1) the property transferred should be a domicile
2) the transferee shouldn’t be a member of the family.
In other words he should be a stranger. the correct of a stranger transferee to own the house partitioned is, subject to Section 4 of the Partition Act, 1893. Under this section, a stranger claiming partition by metes and bounds is also compelled, at the choice of the opposite members of the family to forego his right to partition and accept pecuniary compensation.
What are the rights of a co-owner?
A co-owner is entitled to 3 essentials of ownership:
1. Right to possession
2. Right to use
3. Right to lose his share of the property if it’s clearly stated, within the deed.
Why is co-ownership better?
If you’re a family, co-owning a house along with your spouse has many benefits. Both can get tax benefits. just in case of joint ownership, the husband, additionally because the wife individually, are visiting be ready to claim deductions under Section 24 of the Income Tax Act. so as to know why co-ownership is healthier, you would like to take the assistance of a good property lawyer, who are visiting be able to guide you within the right direction after understanding the facts and circumstances of your case.
When may be a Co-Owner Legally Competent to form A Transfer?
Section 7 of the Transfer of Property Act, 1882 provides that each person competent to contract i.e. a significant and of sound mind or isn’t disqualified by law for contracting. Therefore even the interest of a co-owner or co-sharer are often sold, mortgaged, leased to a different co-sharer or to a stranger. the very fact that the partition has not taken place by metes and bounds , doesn’t interchange the way of the interest of a co-owner.
References
Books:
1. Transfer of Property Act, 1882 (bare provision).
2. The Transfer of Property Act, Dr. S.N.Shukla.
3. Transfer of Property Act, Sir Dinshaw Mulla
Online Sources:
1. Legalserviceindia.com
2. Lawrato.com
3. Makaan.com
Cases:
1. Kochkunju Nair vs Koshy Alexander And Others on 24 March, 1999
2. Bhau Laxman Dhor vs Budha Manku Dhor And Ors. on 6 April, 1926 (AIR 1926 Bom 399)
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