Last week, I looked at joint tenancy in response to a question from a reader 'Bemo' who wrote seeking advice on the type of co-ownership arrangement he should have with his soon-to-be-wife. They are about to invest in what he calls "prime real estate".

He said he has children from a previous marriage and his now trying hard to start a family with his soon-to-be-wife. In continuing the answer to Bemo, I will now turn my attention to another form of co-ownership called tenancy in common.

Unlike joint tenancy, tenancy in common is a form of co-ownership where the co-owners hold distinct shares.

It is sometimes said that the tenants in common hold land in undivided shares. You will recall that in joint tenancy, no joint tenant holds any specific or distinct share. Thus the key in the distinction between the two lies in the reference to the word 'share', that is to say, with respect to tenancy in common it is undivided share and with respect to joint tenancy it is no specific or distinct share.

Allocation of shares

It is only in tenancy in common that we can say that 'A' has 25 per cent share, 'B' 50 per cent and 'C' 25 per cent. The allocation of shares is simply not possible as between joint tenants who are always entitled to the whole share. It can be said that tenants in common own specific but undivided share in the land.

One of the main characteristics of tenancy in common is that there is no right of survivorship between tenants in common. Therefore, the share of each joint tenant passes on death in accordance to his wishes as outlined in his will (if he dies leaving a will) or in accordance with the distribution table under the relevant Act, for those who died without a will and where Letter of Administration must be obtained.

It must be pointed out that no tenant in common may physically mark out any part of the land as his own to the exclusion of the other joint tenant. Thus each tenant is equally entitled to possession of the co-owned land.

It might be useful to say something about the occupation and use of the co-owned land.

Right of possession

Generally, each tenant in common has a right of possession to the entire property and to the use and enjoyment of it in a proper manner.

This right is not affected by the quantum of the co-owner's share. It should be noted however that save in the case of physical ouster of another co-owner or gross interference with the rights of enjoyment, there can be no trespass between the tenants in common. However, it is not unlikely that a remedy of trespass is available to a tenant in common who has been ousted or prevented from entering the land and hence denied possession of the land.

In sum, if Bemo were to hold this prime real estate as tenant in common with his young lady on his death, once a valid will is left by him, his share in the property would go to his children in accordance with his wishes.

In fact, in purchasing the property he could decide the exact share, in terms of percentage, that he wishes to give to the young lady. This protects him in life and in death in that if an exact share is given and there is a separation, a valuation of the property could be done and arrangement made to pay the lady her share in the premises, if he wishes to purchase her share. After death, because the share would have been known, it might be easier for one party to determine whether to buy or sell to the other party. I would advise that Bemo considers owning the property with his young lady as tenants in common for the reasons stated above.

Keith N. Bishop is an attorney-at-law and partner in the firm of Bishop & Fullerton. He may be contacted by email at:

knbishop@gmail.com