Saturday, December 8, 2012

Joint property ownership

Guest post by Samuel G. Njenga

Joint ownership of property will come in two forms:
1.     Joint proprietors
2.     Proprietors in Common

When two or more people purchase land, they can be registered on the Title as either of the above.

Where two or more parties register as Joint Proprietors each registered owner does not have a specific share of the property - all owners have an undefined share in the whole of the land. The right of 'survivorship' applies when a joint proprietor dies, as the ownership automatically vests in the surviving joint proprietor/s. In other words, the deceased proprietor's interest simply evaporates by operation of law, and cannot be inherited by his heirs (which means you avoids going through probate / succession). Under this type of ownership, the last owner living takes all.

In the former registration acts which have since been repealed, it was possible for non-spouses to jointly own property as joint proprietors, not so in the new Land registration Act 2012. In fact any property which was jointly owned by people who are not spouses in the old law automatically transits into proprietors in common mode under the new law. How they’ll split the percentages am not sure; probably they’ll assume equal ownership. The new law only allows spouses as joint proprietors but others will have to be proprietors in common.

As for proprietors in common each registered owner has a separately defined share of the property which can be one undivided moiety or one third, or one quarter, depending on the number of registered proprietors as to the percentage holding. In this instance, when a proprietor in common dies, ‘survivorship' does not apply, and the deceased's share is transferred according to the terms of the will. However in the case of those who die intestate (without a will), then the share is transferred to the administrator of the estate. Simply put, when a proprietor in common dies, that owner's interest in the property will pass by way of inheritance to that owner's heirs, either by will, or by intestate succession.

Lessons to learn:
1.     If you wish to protect your spouse from being harassed by your not so good relatives after you are gone to plant cassavas for those you leave behind, then ensure that the properties you wish her/him to have are registered in both your names. That way, the surviving spouse automatically takes over the ownership without being subjected to succession. The registrar actually will delete the name of the deceased from the title upon confirmation/proof of transition by way of registering the death certificate.

2.     In the case where several people contribute unequal amount towards the acquisition of a property then the % of ownership need to be clearly stipulated in the registration documents.

By the way, did you know that any transfer even in the case of a gift or inheritance attracts stamp duty? Next we shall look at registration of minors (below 18) and registration of properties in trust. I have at one point met someone who never really trusted their spouse and decided to register the property in the name of a minor.

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