Co-Ownership in Kenya: Your Legal Guide
It is common for friends, couples, and even groups to invest in buying property together, whether for residential, commercial, or investment purposes. However, it is prudent to be familiar with the different types of ownership structures available in Kenya before venturing into such arrangements. Understanding the nature of co-ownership(co-tenancy) helps avoid future disputes and ensures that each party’s rights and obligations are clearly defined. Two of the most common forms of co-ownership in Kenya are joint tenancy and common ownership (tenancy in common). These legal arrangements determine how property is held, transferred, and inherited. This article explores the key distinctions, legal implications, and practical considerations of joint tenancy and common ownership under Kenyan law.
What is Co-ownership?
Co-tenancy/co-ownership refers to the legal ownership of land by two or more persons and includes both joint tenancy and tenancy in common. According to Section 91(1) of the Land Registration Act, this form of ownership allows multiple parties to hold an interest in a single parcel of land, either jointly or as tenants in common.
Joint Tenancy
Joint tenancy is characterized by the right of survivorship(jus accrescendi). This means that when one of the joint tenants dies, their interest in the property automatically passes to the surviving tenant(s), and does not form part of the deceased’s estate.
Key Features:
- Undivided Interest: All joint tenants own the entire property collectively and equally.
- Four Unities: Joint tenancy requires the unities of possession, interest, title, and time:
- Possession: Each joint tenant has equal rights to possess the whole property.
- Interest: All tenants have the same interest in terms of size and duration.
- Title: All tenants derive their title from the same document or transaction.
- Time: Interests of all tenants must commence at the same time.
- No Testamentary Disposition: A joint tenant cannot pass their interest in the property to another person through a will.
Severance of Joint Tenancy
A joint tenancy can be severed either by:
- Agreement among the parties,
- Unilateral action, such as transferring one’s interest to oneself or a third party (where allowed),
- Court order,
- Bankruptcy, mortgage, or sale that disrupts the unity of title.
Under Section 91(7), joint tenants who are not trustees may execute an instrument to sever the joint tenancy, converting it into a tenancy in common. Severance is complete upon registration.
Case Law: In Diana Muchiri v Lydia Wariara Njenga & another [2022], the court reaffirmed that unless severance is formally done, the rights of joint holders remain intact, including the doctrine of survivorship.
Tenancy in Common
Tenants in common each hold a distinct, though undivided, share in the property. Unlike joint tenancy, there is no right of survivorship. When a tenant in common dies, their share forms part of their estate and passes according to their will or under the laws of intestacy.
Key Features:
- Undivided Shares: Each co-owner has a separate and identifiable interest in the property, though not in any specific physical portion.
- No Survivorship: The share of a deceased co-tenant passes to their heirs.
- Transferability: Tenants in common can transfer their share (subject to restrictions).
- Consent Requirements: Section 91(6) of the LRA prohibits a tenant in common from dealing with their share in favour of a third party without the written consent of the other co-tenants. However, the Registrar may dispense with consent under Section 91(8) if it is unreasonably withheld.
Default Position on Co-ownership
Under Section 91(2) of the LRA, where two or more individuals acquire land through an instrument that does not specify the nature of their co-ownership, the law presumes a tenancy in common in equal shares unless a written law states otherwise.
Partition and Dispute Resolution
When co-owners disagree or wish to terminate their relationship:
- Partition: Co-owners can apply to the Registrar, as provided under Sections 12 and 13 of the LRA, to partition the land.
- Court Review: If aggrieved by the Registrar’s decision, a co-tenant may apply to the Environment and Land Court for review under Section 91(9).
In cases where severance is not amicable, a party may request the Court to order:
- Sale of the entire property, and distribution of proceeds,
- Auction, if parties refuse to cooperate,
- Or other equitable remedies depending on the circumstances.
Conclusion
Understanding the legal implications of joint tenancy and tenancy in common is essential for anyone looking to co-own property in Kenya. The Land Registration Act, 2012 provides the legal backing necessary to safeguard the interests of all co-owners, including remedies for aggrieved parties. Whether you’re entering into a co-ownership agreement or considering severance, it is important to consult a legal expert to navigate the complexities and ensure your interests are protected.
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By: Sheila Mwikali
