Co-ownership of land by spouses, or by blood relatives, is common, so it's vital that you know the difference between the two kinds of co-ownership. These are ownership as a "joint tenancy" or ownership as a" tenancy in common".

Land held in a joint tenancy results in each co-owner having an unascertained share. Therefore, that share cannot be sold separately; if a co-owner dies, the deceased's share automatically goes to the other co-owners whether or not there is a will. Conversely, land held in a "tenancy in common" results in each co-owner having an ascertained share (say 50:50 or 60:40 or 75:25), which may be sold separately and on death, the deceased's share does not automatically transfer to the other co-owners. In each case, land ownership can be freehold or leasehold or by way of condominium.

A joint tenancy is usually most appropriate for a husband and wife, who remain married and wish the surviving partner to automatically own the marital home in full after the death of one spouse. A tenancy in common is usually most appropriate for co-owning relatives, or friends, who will probably want others, who are not co-owners, to benefit after death.

The relevant kind of co-ownership is usually ascertained in the event of a dispute between the owners, or a divorce, or if a co-owner dies, becomes bankrupt, or wishes to sell against the wishes of another co-owner.

For a joint tenancy, "four unities" must exist – those of possession, interest, title and time. Unity of possession means that each co-owner is as much entitled to possession of any part of the land as the others; unity of interest means that the interest of each joint tenant is the same in extent, nature and duration; unity of title means that each joint tenant must claim their title to the land under the same act or document; and unity of time means that the interest of each tenant must vest at the same time.

The four unities are often present in a tenancy or voluntary conveyance of land to two or more individuals, without any further reference regarding the kind of ownership. However, the four unities can be displaced by "words of severance", which if used indicate co-ownership by way of a tenancy in common.

A joint tenancy can become a tenancy in common by a process known as "severance", which occurs by the action of one or more co-owners, or by a course of transactions, indicating a tenancy in common. After severance, each co-owner usually has an equal share in the newly created tenancy in common.

Additionally, the four unities can be displaced if there is evidence of an intention contrary to creation of a joint tenancy. For example, if business partners acquire land as co-owners, the established rule is that ownership automatically passing to the other co-owners has no place in business. Business partners usually, therefore, have a tenancy in common unless specific wording is found creating a joint tenancy.

One characteristic of a tenancy in common is that a co-owner can transfer their interest to a third party. However, such a transfer could result in a new and undesirable co-owner. To avoid such a possibility, co-owners may wish to enter into a scheme requiring a selling co-owner to give a right of first refusal to the other co-owners. If a co-owner of either a joint tenancy or tenancy in common desires to sell without the agreement of the other co-owners, the Partition Act 1855 provides a potential remedy. The co-owner desiring sale may apply to the Supreme Court for an order, which could result in a sale of the land, as directed. After sale, proceeds are allocated to the co-owners in accordance with the court order.

An attorney expert in the area can assist with:

¦ advising if land to be acquired should be held as a joint tenancy, or as tenants in common;

¦ finding out if land already acquired is held as a joint tenancy, or as a tenancy in common;

¦ transferring a joint tenancy to a tenancy in common;

¦ arranging a scheme for co-owners to have first refusal against a selling co-owner;

¦ transferring a tenancy in common to a joint tenancy; or

¦ attempting to force the sale of co-owned land.

Attorney Neil Molyneux is a member of the Property Practice Group at Appleby. A copy of this column is available on the firm's website at www.applebyglobal.com. This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.