ISSUES FOR DETERMINATION
- Can a husband and wife jointly own a property together in Nigeria?
- How to secure interest in joint ownership of a property in marriage
What does joint ownership of property mean ¬¬
This simply means where two or more persons decide to purchase a property together. The most common situation is when married or unmarried couples buy a home or land together. However joint ownership may also occur where friends or family members choose to jointly purchase a property.
There are a number of things to consider before deciding on joint ownership, they include;
The type of co-ownership
The type of documents that must be put in place to avoid problems in future
What will happen if a party dies
What happens if a party wishes to sell and the other party does not
What happens if parties decides to go separate ways
Note that deciding to co-own a property with someone else is a huge decision as it can have a life changing impact on a person.
Can a husband and wife jointly own a property together?
Yes, a husband and wife can jointly own a property together as there is no law in Nigeria that bars the married couples from joint purchase or ownership of a property. S.7 land use act 1978.
However, a husband and wife are two separate human beings each with full legal capacity to either own or purchase a property separately or jointly as they may desire. Married women property law 1959. A couple that wishes to buy or sell a property cannot do so as Mr. and Mrs. Garba shehu [husband and wife] but can buy and sell a property as Mr. garba shehu and Mrs. Fatima shehu [husband and wife]. The reason is because the former is not a legal person recognized by law as having capacity to hold property and to enter into a contract. This was as decided in the case osuji v. ekeocha 2009 [LPELR] 2816 [SC]
Another option open to a couple who wants to jointly and equally own a property is by registering a company, be the shareholders and directors, then they can use the company to acquire and own landed property jointly and equally.
A couple can also have a principal Property settlement agreement [PPSA] wherein landed properties are listed out and expressly made to be jointly owned. Where necessary, landed property can be allotted in the agreement.
How to secure interest in joint ownership of a property in marriage
A husband and wife can share equal ownership of a property and have equal/ undivided right to keep or dispose of the property. As such a husband cannot without the wife’s consent dispose of or transfer by will any property he jointly owns with his wife even after dissolution of the marriage. In other to secure one’s interest in the property in this circumstance is to ensure that there is a convincing proof of a direct and substantial contribution to the acquisition of the said property.
This was held in the supreme court case of okeke v. akaluka 2014 [LPELR] 24287 [CA]
In another situation where a husband may purchase a property in the name of his wife and vice versa, the law would ordinarily presume an intention to gift the property to his wife. This is known as a presumption of advancement. In other to secure an interest in such property, is simply by proving that no gift was intended. This also extends to where a husband acquires tittle to a property on his sole funds but inserts his wife’s name as a co-owner, in such situation, the wife will acquire an equal interest in the property as the court would ordinarily presume that the husband had intended to gift the said property to the wife.
Other type of joint ownership of property is known as joint tenancy, which is divided into different forms, namely;
i. Joint tenancy
ii. Tenants in common
iii. Tenancy by entirety
This entails the right of survivorship, as neither the co-owners owns an identifiable share of the property instead they co-own the whole of the property. In a situation where one owner dies, the property will automatically pass into the name of the surviving co-owner. A joint tenancy may be created by will or by deed.
Tenants in common
In the case of tenant in common, they do not have the right of survivorship, but each party owns a specific share of the property. This is often 50% each; however it could be dependent on how much each person contributed to the purchase of the property. When one owner dies their share of the property passes via a will or through the laws of intestacy to another person who will become a tenant in common with the surviving co-owners.
Tenancy by entirety
This type of co ownership is exclusively for husband and wife; it provides the right of survivorship. for tenancy by entirety to exist the co-owners must be married, tenancy by entirety does not allow one spouse to convey his interest to a third party however, one spouse may convey his interest to the other spouse. A tenancy by entirety may be terminated by divorce, death or mutual agreement by both spouses.
A terminated tenancy by entirety becomes a tenancy in common. S.44 of the transfer of property act 1882 deals with the transfer by one co-owner, where one co-owner of immovable property legally competent in that behalf transfers his share of the property, the transferee acquires the transferors right to joint possession or use of the property. He can enforce a partition of the property.
A transferee who takes transfer from another, steps into the shoes of his transferor. He has all the rights and becomes subject to all the liabilities of the transferor. He becomes a co-owner as his transferor was before the transfer.
It is advisable for parties to approach the court whenever there is a dispute with respect to securing an interest in a property as the court will take proper consideration of the various facts and circumstances of each case in awarding ownership or making any direction in that regard.
SEC7 OF THE LAND USE ACT 1978
MARRIED WOMEN PROPERTY LAW 1959
SEC44 TRANSFER OF PROPERTY ACT 1882
OSUJI V. EKEOCHA 2009 [LPELR] 2816 [SC]
OKEKE V. AKALUKA 2014 [LPELR] 24287 [CA]
Written by Christiana Eni Ukpai
Junior Associate at Starlion Legal