Co-ownership

Question 1

What is co-ownership?

Answer 1

Where two or more people together own the same estate (freehold or leasehold) in the same piece of land at the same time.

A trust of land is imposed; separating the legal and equitable title.

PS! the equitable owner will have a proprietary right in the land subject to the trust.

Question 2

What trusts can impose the separation of title?

Answer 2

1. Express trust; evidenced in writing and signed by declarant.
2. Implied trust: No formalities. An implied trust of land will be a resulting or a constructive trust.

Question 3

What are the two types of co-ownership?

Answer 3

1. Joint tenancy
2. Tenancy in common

Question 4

What are the conditions for joint tenancies?

Answer 4

A joint tenancy all co-owners are deemed to:

• Constitute one single entity
• Own the whole property as one
  collective entity.
• The right of survivorship applies.
• The co-owners must hold the four unities of title.

Question 5

What are the conditions for a tenancy in common?

Answer 5

A tenancy in common requires:

• only unity of possession although the
  other unities may be present.
• each having a ‘distinct but undivided
  share’ in the land.
  Each has a clearly quantified share of the whole, say 25%, but cannot point to any particular part of the land and say ‘that is my 25%’.
• The right of survivorship does not
  apply.

Question 6

What are the four unities of title?

Answer 6

1. Unity of possession:
   Each co-owner is as much entitled to
   possession of any part of the land as the others
2. Unity of Interest:
   Interest in land held by each co-owner must be of the same nature and duration.
3. Unity of title:
   All co-owners must acquire their title from the same document. (deed/lease)
4. Unity of time:
   The interest of each co-owner must vest at the same time. This does not mean that they must all sign the document at
   the same time or move into the propertyat the same time.

Question 7

What are the conditions of a legal title?

Answer 7

• There must be a maximum of four legal owners.
• The trustees must be ‘sui juris’: of full age and sound mind.
• The legal title holders must hold the property as joint tenants; they must possess the four unities of title.

PS! CANNOT be severed to make a tenancy in common.

Question 8

What are the conditions of an equitable title?

Answer 8

• No limit on the number of people who can hold an equitable interest in a piece of land;
• There is no requirement to be sui juris: of full age and sound mind.
• The equitable owners can choose whether they hold the equitable title as joint tenants (four unities are met) or tenants in common (at least unity of possession).