Mehluli Malisa Batakathi and Teddy Musonda
The term tenancy in the context in which it is used in this article must be understood to mean an interest in land. Co-ownership of land refers to the enjoyment of the rights of ownership to a piece of land by two or more persons at the same time. The law of co-ownership of land operates whenever two or more people enjoy the rights of ownership of the same property at the same time[1]. There two main types of co-ownership in Zambia are joint tenancy and tenancy in common.
The Types of Co-ownership in Zambia
Joint Tenancy:
Under a joint tenancy each co-owner is treated as being entitled to the whole of the land. In the celebrated case of Scott v Scott[2], the Supreme Court held that a joint tenancy is one where the joint owners hold the whole of the land together. In essence, no joint tenant can exclude the other nor can one assert more rights over the land than the other.
Under Zambian law, a joint tenancy is identifiable by the existence of two essential requirements: (i) the four unities (possession, interest, title, and time) and (ii) the right of survivorship, this was aptly outlined in the case Akreil Zulu v Anna Zulu,[3] wherein it was held that the four unities can be described as the ‘PIIT doctrine’ which entitles each joint owner to equal rights to possess the entire parcel of the land, each joint owner has an equal interest (legal an equitable right to the land), each joint owner acquires the same titles (each joint owner’s name must be inserted on the title deeds), and each joint owner owns the land for an equivalent duration. The right to survivorship which is also known by the Latin maxim, jus accrescendi, basically entails that a joint owner loses their interest in the land completely when they die and their interest does not transfer to their descendants but instead escheats to the remaining joint owner(s) who own the land exclusively.
The four unities are vital in order for a joint tenancy to exist. In Mikeover Limited v Brady[4]it was held that the absence of any one of the four unities disqualifies a co-ownership arrangement from being a joint tenancy, rendering it a tenancy in common instead. In Zambia, a joint tenancy is created by registering ownership of the land in line with the Lands and Deeds Registry Act.[5] According to Section 51(1) of the Act, where the certificate of title makes no mention of shares held by the owners of the land, then a joint tenancy is created.
Tenancy in common:
Under a tenancy in common, each co-owner has a distinct and quantifiable share in the land. Tenants in common hold, in undivided shares, that is to say, they have distinct shares which have not yet been divided. In other words, a tenant in common can point to a precise share of ownership of the land[6]. A tenancy in common is also created by registering ownership of the land in line with the Lands and Deeds Registry Act. According to Section 51 (3) of the Act, if the certificate of title makes mention of any shares or percentages held by the ownership in the land, then a tenancy in common is created.
One notable difference between the two types of co-ownership can be seen in the effect that each type conveys. A joint tenancy grants the surviving owner(s) exclusive rights over the whole of the property by the application of the jus accrescendi, while the tenancy in common, the surviving owner(s) do not exclude the deceased’s ownership rights over the land because the deceased’s rights to the property are passed on to their descendants who exercise the same and equal rights as did the deceased before their demise.
SEVERANCE OF A JOINT TENANCY
A joint tenancy can be converted it into a tenancy in common. This can be done by acts of severance by one co-owner. In Williams v Hensman[7], severance was defined as the process of separating the share of joint tenants, so that the concurrent ownership will continue but the right of survivorship will no longer apply. In Burges v Rawnsley,[8] as per Lord Denning, a joint tenancy may be created by parties but it can be subsequently severed and converted to a tenancy in common by destroying any of its constituent unities, these unities are possession, interest, title and time. This therefore, translates that where one party to a joint tenant is excluded from exerting possession of the property, or one party to a joint tenancy exercises more or a greater interest in the property than the other, then such acts would constitute severance as and the tenancy therefore is deemed as tenancy in common.
The case of Williams v Hensman elaborated three ways or methods in which a party to a joint tenancy may sever the tenancy, thus converting it to a tenancy in common: (i) an act by a joint tenant operating on their own share, (ii) mutual agreement or, (iii) a course of dealing sufficient to intimate a tenancy in common.
An act by a joint owner operating on their own share essentially occurs when the co-owner seeks to deal with ‘their share’ of the land, so manifesting an intention no longer to be part of the joint tenancy. The very action of dealing with one’s own share thereby severs that share.
This act may take many forms and ways, the underpinning point to be considered though, is that a joint owner does an act out of their own initiative so as to deal with the land or property as though they owned it solely or specially. Examples of acts that would fall under this umbrella would be where (a) a joint owner sells their ‘share’ or some part of the property to a third party (b) or places the property on mortgage (c) invites a third party to reside, with a sense of permanence on the land without consent from other co-owners.
In Mortgage Corporation Ltd v Shaire[9], it was stated in obiter, that an act by one joint owner without the knowledge or consent of the other joint owners is a strong indication that the joint owner has severed the land. More intently, in Harris v Goddard,[10] it was stated thatthe person so acting must have intended the act to be final and irrevocable, particularly as it prevents any claim for survivorship for themselves.
The second mode of severance is mutual agreement. A joint tenancy can be severed by the mutual agreement of all of the joint owners. In Wright v Gibbons[11], it was held that where one joint owner does not agree to the severance of the tenancy, then the agreement would not be valid. Essentially, each joint owner must consent to the severance of the tenancy.
The third mode is by course of dealing. Here, the joint tenancy severs due to the mutual conduct of the joint owners. In Williams v Hensman cited above, it was held that for conduct to constitute a course of dealing that severs a joint tenancy, the conduct must be ‘sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.’
Contrasted from mutual agreement, the course of dealing does not require all the joint owners to agree orally or in writing, instead, their conduct must entail that each joint owner intended to hold the land as tenants in common. Accepted examples of conduct that would constitute a course of dealing thereby severing the joint tenancy are: periodic distributions of property amongst joint owners, the apportionment of the profits of trade amongst the joint owners of a business on the assumption that they are tenants in common,[12] or where the owners make wills, as was the case in Re Wilfords’s Estate.[13]
It follows that, a joint tenancy may be created, but, it may subsequently sever and convert into a common tenancy thus affecting the rights of the owners.
Conclusion
The nature and effects that each type of co-ownership discussed above are fundamental, it is thus cardinal, that parties that intend to be co-owners of land must first seek counsel so as to be fully aware of the rights and effects that each type of co-ownership carries. Additionally, parties may start as owners under a joint tenancy but subsequently, their ownership may change to a tenancy in common by way of severance therefore, affecting their rights and their legal relationship with each other as well as the land.
[1] Martin Dixon, Principles of Land Law (4th ed, Cavendish Publishing Limited 2002) 115.
[2] [2007] ZMSC 3
[3] 2020 ZMSC 149
[4] [1989] 3 All ER 618
[5] Chapter 185 of the Laws of Zambia
[6] F. Mudenda, Land Law in Zambia cases and materials. 2007. Unza press
[7] (1861)1 J & H 546
[8] [1975] Ch 429, CA
[9] ([2001] Ch 743, ChD)
[10] (1983)1 W.L.R 1203, 1210
[11] (1949) 78 C. RY 313″at 322.
[13] (1879) 11 Ch D 267
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