Joint tenancy, severance, and wills are vital elements of property law that frequently converge in intricate legal disputes. Understanding these concepts and their implications can help navigate property ownership and inheritance issues more effectively. This article delves into these topics, drawing on relevant case law from Ghana, including the cases of E & CO.383 Franklin Street Bloomfield v. Encol Limited, Edward Krampah and Susan Amoah Alex Kofi Coleman(2016), and Paul Adomako and Victoria Adomako v. Mrs. Owusu Asiedu(2008).

Joint Tenancy and Tenancy in Common

Joint tenancy is a form of property co-ownership where two or more individuals hold an equal share of the property with rights of survivorship. This means that upon the death of one joint tenant, their share automatically passes to the surviving joint tenants. This form of ownership is distinguished by the four unities: unity of time, title, interest, and possession.

Tenancy in common, on the other hand, allows two or more individuals to own a property together but without the right of survivorship. Each tenant in common holds a distinct, divisible interest in the property, which can be of unequal shares. This interest can be sold, transferred, or bequeathed independently of the other co-owners.

Severance of Joint Tenancy

Severance refers to the process by which a joint tenancy is converted into a tenancy in common, removing the right of survivorship.

Severance can occur through various actions, including:

• Alienation: Any act of a joint tenant that deals with their interest in the property, such as selling or transferring their share, can sever the joint tenancy.

• Mutual Agreement: Joint tenants can agree to sever the joint tenancy and hold the property as tenants in common.

• Unilateral Actions: Certain unilateral actions, such as bankruptcy or a joint tenant mortgaging their interest, can also result in severance.

The case of E & CO.383 Franklin Street Bloomfield v. Encol Limited, Edward Krampah and Susan Amoah Alex Kofi Coleman illustrates the principle of severance through unilateral action. In this case, the court addressed whether a property mortgaged by one joint owners without the consent of the others could be used to satisfy a debt. the court held that the interest of the 3rd Defendant/Judgment Debtor in the property was not held as a joint indivisible interest. The court cited precedent and statutory provisions, specifically Section 14 (3) of the Conveyancing Act 1973 NRCD 175, which states that unless an instrument explicitly states otherwise, a conveyance to two or more persons creates a tenancy in common, not a joint tenancy. This implies that each beneficiary has a distinct and separable interest in the property

The appeal court concluded that the 3rd Defendant/Judgment Debtor did not need the consent of the other beneficiaries to mortgage her interest in the property. The property was deemed to be held as tenants in common, which allowed the 3rd Defendant/Judgment Debtor to unilaterally mortgage her share of the property.

In Paul Adomako and Victoria Adomako v. Mrs. Owusu Asiedu, the issue revolved around the validity of a purported deed of gift involving a joint tenancy. The court clarified that alienation by one joint tenant without the consent of the other typically results in severance, transforming the joint tenancy into a tenancy in common. The court emphasized the necessity of complying with formal requirements to effectuate such a deed. In this case, the purported deed of gift did not meet the necessary legal criteria, such as proper attestation and a clear indication that it was intended to be a deed. This lack of formal compliance rendered the deed invalid.

Wills and Joint Tenancy

Wills play a significant role in determining the distribution of property upon the owner’s death. However, in the context of joint tenancy, the right of survivorship generally overrides the provisions of a will. This means that even if a joint tenant bequeaths their share of the property to someone else in their will, the surviving joint tenants will automatically inherit the deceased’s share.

The principle was exemplified in the E & CO.383 Franklin Street Bloomfield case, where the court had to interpret a will that devised property to multiple beneficiaries. The court noted that unless explicitly stated, the devise created a tenancy in common rather than a joint tenancy, allowing the property to be distributed according to the will’s terms.

The manner in which property is owned during a person’s lifetime, whether as a joint tenant or a tenant in common, is a crucial aspect of property law and significantly impacts the effectiveness of wills. Whether dealing with joint tenancy or interpreting wills, it is crucial to ensure that legal requirements are followed to uphold the rights and intentions of all parties involved.