After engaging with our past three article series, you may have wondered how one can then sever a co-tenancy, whether be it joint tenancy or tenancy in common. Worry not, we shall enlighten you on what the way forward is if you have found yourself pondering over this matter.
So far, we have already determined how the different co-tenancies are formed and documented and further, the reaching impact of choosing one co-tenancy option over the other [access our article tackling co-tenancies here if you wish to refresh your memory of the same or if you are a first time visitor (welcome to our platform!)
Can a Co-Tenancy be Severed?
Josephat Thuo Githachuri v James Gaitho Kibue & another; Gladys Nduta Mbugua (Interested Party) [2021] eKLR
A tenancy in common or tenancy in entirety means that the interest of each registered owner is determinable and severable; in a joint tenancy, the interest of each owner is indeterminable, and each owns all and nothing…
A joint tenancy cannot be severed unless one of the four unities of title, time, possession or interest is broken. A joint tenant has the right to the entire property or none – since the other joint tenant also has a right to the entire property.
Tenants in common have undivided shares and no right of survivorship, meaning that when a tenant dies, their interest in the land passes under their will or intestacy.
The doctrine of survivorship in joint tenancies states that when one of the tenants passes on, the remaining tenant automatically becomes the sole owner and the property is not up for distribution. The four unities of a joint tenancy are possession, interest, title and time.
Possession implies that each joint tenant is entitled to possession of any part of the land, while interest implies that the interest of all joint tenants is the same in extent, nature and duration. Unity of title implies each joint tenant must claim their title to the land under the same act or document, while time implies the interest of each tenant must vest at the same time.
How to sever a Tenancy in Common
If one party wants out, then just as if the owners were joint tenants, the others must allow that, whether it is done through a sale of the whole property and all owners cashing out one of the other owners buying out the share, or a non-owner buying that share.
The jurisdiction to partition land owned under common tenancy is vested in the Registrar appointed under sections 12 and 13 of the Land Registration Act No. 3 of 2012 (the LRA). Subsection 5 of the LRA allows a co-tenant who is aggrieved by the decision of the Registrar to apply to this court for orders of review. The residual jurisdiction of the court is the power to review the orders of the Registrar.
Can a Joint Tenancy, therefore, be severed?
A joint tenancy may be terminated with or without the approval of the other co-owners. Breaking any four unities breaks a joint tenancy. Charging or mortgaging property, enforcement of a power of sale, or bankruptcy can sever a joint tenancy, as it destroys one of the unities essential to the joint tenancy: title. However, a will leaving a share in the property to another person does not sever the joint tenancy.
To sever a joint tenancy, the most common way is to serve a Notice of Severance. Severance can be effected through communication and agreement, not legally binding. If one party wants out, then the other must agree to convert the tenure to tenancy in common, the sale of the property, or buy the co-owner out. The other can be forced to sell by order of the Court if necessary, and the Court will order a sale by auction if one party refuses to co-operate
Section 60 of the LRA provides that if any joint tenant of any land, lease or charge dies, the Registrar shall delete the name of the deceased tenant from the register and any attempt to transfer an interest to any other person is void.
Diana Muchiri v Lydia Wariara Njenga & another [2022] eKLR
A joint tenancy can be converted into a tenancy in common by the doctrine of severance. But unless this is done the rights of joint holders so remain.
A quick takeaway recap is that making sure that you completely understand your rights as a joint tenant or co-tenant before severance is critical to not losing any legal recognition and permissions. This concludes our series on joint tenancy and ushers us to the next part of our engagement: children and property rights.
