472+ Lawyers are online 
Laws related to co-ownership of a joint property
April 05, 2024 हिंदी में पढ़ेंTable of Contents
- What is Joint ownership or Co-ownership of property?
- What are the types of co-ownership or joint-ownership of property in India?
- What is the difference between joint tenancy and tenants in common?
- What kind of joint ownership of property exists between husband and wife?
- What are the laws related to the transfer of property by a co-owner?
- What are the rights of a co-owner of a property in India?
- Can a co-owner make a transfer without the consent of other co-owners?
- Why is co-ownership better?
- What are some of the joint property rules in India?
- What are some of the joint property ownership disputes in India?
What is Joint ownership or Co-ownership of property?
Co-ownership of property or joint ownership of property means when two or more persons hold title to the same property. Co-owners of a property mean all the owners of that particular property. Any co-owner can transfer his/her personal share in such property to a co-owner or even a stranger which results in that transferee stepping into the shoes of the co-owner. A co-owner generally has the right to possession, right to use, and even dispose of the property.
What are the types of co-ownership or joint-ownership of property in India?
There are two types of co-ownership of property that are recognised under Indian law. These have been explained below:
-
Tenants in Common: When two or more people buy a property but do not specifically mention the share that each has in the property, a 'tenancy-in-common' is said to exist. All the co-owners can use the entire property and every co-owner is deemed to be having an equal share in the property. Each tenant-in-common has a separate fractional interest in the property. However, each tenant-in-common may possess and use the entire property. Each tenant-in-common can freely transfer his/her interest in such property. Tenants-in-common do not have the right of survivorship. Hence, if one dies, his/her interest passes by way of Will or through laws of intestacy to another individual who can then become a tenant-in-common, along with the surviving co-owners.
-
Joint Tenancy: Joint tenancy is a form of co-ownership where the property is owned by two or more persons at the same time in equal shares. This type of tenancy provides rights to ownership of the property for the co-owners who outlive other co-owners. Joint tenancy entails the right of survivorship. If one such co-owner dies, it is immediately passed on to the surviving/other joint tenants. All the joint tenants have a single unified interest in the whole property. The joint tenancy must have undivided interests in the entire property, and not divided interests into separate parts. A joint tenancy can be created by a Will or a Deed. Each joint tenant should have estates of the same type and duration as well.
What is the difference between joint tenancy and tenants in common?
Joint tenancy and tenants in common are two ways that people can co-own property or assets. The main difference between them lies in how ownership is structured and what happens to the property or assets if one of the co-owners passes away. Joint tenancy refers to a form of co-ownership in which two or more people own an undivided interest in the same property, with each owner having an equal right to the entire property. When one of the joint tenants dies, the ownership of the property automatically passes to the surviving joint tenant(s) without the need for probate. This is known as the right of survivorship. In contrast, tenants in common refers to a form of co-ownership in which two or more people own a specific share or percentage of the same property. Each owner has the right to sell or transfer their share of the property without the consent of the other co-owners. When one of the tenants in common dies, their share of the property is passed on to their designated heirs or beneficiaries as part of their estate and is subject to probate. So, joint tenancy provides for the automatic transfer of ownership to surviving co-owners upon the death of one owner, while tenants in common allows for individual ownership shares and allows for each owner's share to be passed on to their designated heirs or beneficiaries.
What kind of joint ownership of property exists between husband and wife?
The co-ownership or joint ownership of property that exists between husband and wife in India is called tenancy by entirety. This is a special form of joint tenancy when the joint tenants are namely the husband and wife -- with each owning one-half. To exist, tenancy by entirety requires the two co-owners to be married i.e., husband and wife. Under this type of co-ownership, no one spouse is allowed to convey or transfer his/her interest to a 3rd person. However, the husband or the wife can convey his/her share to their spouse. A tenancy by the entirety can only be terminated by way of a divorce, death, or a mutual agreement between the husband and wife. Such terminated tenancy becomes a tenancy in common.
What are the laws related to the transfer of property by a co-owner?
Section 44 of the Transfer of Property Act 1882 deals with transfer by a co-owner and it also deals with the rights of a transferee in this type of transaction. According to this Act, every joint or co-owner has a proprietary right on the entire property. Hence, any sale has to be done with the consent of all co-owners involved. If, however, there are specific conditions in the agreement that gives co-owners exclusive rights to certain parts/portions of the property, a co-owner can sell his portion to whom he chooses.
What are the rights of a co-owner of a property in India?
A co-owner is entitled to three essentials of ownership:
-
Right to possession
-
Right to use
-
Right to dispose of his share of the property if it is clearly stated, in the deed.
Can a co-owner make a transfer without the consent of other co-owners?
As per Indian law, a co-owner cannot make a transfer of the property without the consent of other co-owners, unless there is a specific legal provision allowing for such a transfer. This is because all co-owners have an equal right to the property, and any transfer by one co-owner affects the rights of the other co-owners. However, there are certain exceptions to this general rule. For example, if the co-owners hold the property as tenants in common, each co-owner has the right to sell or transfer their share without the consent of the other co-owners. Additionally, if the property is partitioned, meaning it is divided into separate portions, each co-owner can sell or transfer their share of the partitioned property. Similarly, if the property is jointly owned by two or more people, and one of the co-owners has obtained a court order allowing them to sell their share of the property, they may be able to do so without the consent of the other co-owners. Or, if there is a specific provision in the co-ownership agreement or deed that allows for a co-owner to sell or transfer their share of the property without the consent of the other co-owners, then such transfer may be allowed. It's also worth noting that even if a co-owner makes a transfer without the consent of the other co-owners, the transfer may not be legally valid and can be challenged in court by the other co-owners. Therefore, it's important for co-owners to obtain the consent of all parties involved and follow proper legal procedures when making any transfers of property.
Why is co-ownership better?
If you are a married couple, co-owning a house with your spouse has many benefits. Both can get tax benefits. In the case of joint ownership, the husband, as well as the wife individually, will be able to claim deductions under Section 24 of the Income Tax Act. In order to understand why co-ownership is better, you must take the help of a good property lawyer, who will be able to guide you in the right direction after understanding the facts and circumstances of your case.
What are some of the joint property rules in India?
In India, there are several joint property rules that govern the co-ownership and management of property that is jointly owned by multiple parties. Here are some of the key rules and considerations:
-
Equal ownership: By default, co-owners of property in India are presumed to have equal ownership unless there is evidence to the contrary.
-
Management: Co-owners have equal rights to manage the property and make decisions regarding its use and maintenance. However, major decisions that may affect the entire property or require significant investment, such as selling or mortgaging the property, may require the consent of all co-owners.
-
Liability: Each co-owner is responsible for their share of any liabilities or expenses related to the property, such as property taxes or maintenance costs. However, if one co-owner incurs a debt or liability related to the property, all co-owners may be held jointly liable.
-
Partition: Co-owners have the right to partition the property and divide it into separate portions or sell their share of the property, unless there is a legal restriction on doing so. If the property is sold, the proceeds are typically divided equally among the co-owners.
-
Succession: If one of the co-owners passes away, their share of the property may pass to their legal heirs or as per their will, unless the co-owners have a specific agreement in place that governs the transfer of ownership.
-
Registration: Joint property agreements should be registered with the appropriate authorities to ensure that they are legally valid and enforceable.
It's important to note that these rules may vary depending on the specific circumstances of each case, and it's advisable to seek legal advice to understand the applicable rules and obligations related to joint property ownership in India.
What are some of the joint property ownership disputes in India?
Joint property ownership disputes are common in India, especially when there are multiple co-owners involved. Here are some of the most common types of disputes that can arise:
-
Partition disputes: Partition refers to the process of dividing the joint property into separate portions, which can be sold or transferred to individual co-owners. Disputes can arise when there is disagreement over the valuation of the property or how the partition should be done.
-
Management disputes: Co-owners may disagree over how the property should be managed, such as who is responsible for maintenance or repairs, or how rental income should be divided.
-
Sale disputes: Co-owners may disagree over whether to sell the property or not, or how the sale proceeds should be divided among them.
-
Succession disputes: Disputes can arise when a co-owner passes away and their share of the property is inherited by their legal heirs, who may not agree on how the property should be managed or sold.
-
Title disputes: Co-ownership of property can lead to title disputes, especially if there are questions over who has legal ownership of the property or if there are multiple claims to the property.
-
Construction disputes: If co-owners decide to construct additional buildings or make renovations to the property, disputes can arise over who is responsible for the cost or how the construction should be done.
These are just a few examples of the types of disputes that can arise in joint property ownership in India. It's important for co-owners to have a clear agreement in place and to seek legal advice from an experienced property lawyer to resolve any disputes that may arise. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert property lawyers.
Greater Kailash - 1, Delhi
5 years
These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best
to make sure these guides are helpful, we do not give any guarantee that
they are accurate or appropriate to your situation, or take any
responsibility for any loss their use might cause you. Do not rely on
information provided here without seeking experienced legal advice first. If
in doubt, please always consult a lawyer.
The internet is not a lawyer and neither are you.
Talk
to a real lawyer about your legal issue.
Comments by Users
Ashish
We have a property in name of my brother and my father, So what will be my rights on property in case of succession. Will it be 75% to my brother and 25% to me after my father or it will be 50-50?
Reply by LawRato
If your father has 50% of the property in his name, after his death, only that 50% will devolve upon his heirs as per the succession laws in case no Will has been written in that regard by your father.
Vishnu datt
I, son & daughter in law jointly invested in a under construction property. Now want to register all three name with % of ownership as per investment. But building nor ready to put share of %
Reply by LawRato
More information is required in order to direct you in the right direction. The stage at which the property is right now is unclear. Information related to the investment ratios and any agreements between the parties is also required.
It is difficult to answer your query without more information on your case. It is therefore advised that you click on the link below and send in your detailed query for Free Legal Advice.
Alternatively, you can consult a lawyer by clicking on the link below Top Property Lawyers in India
KR
I own a land with my mother. She wants to sell it. I am currently in the USA. What is the procedure to provide consent so that she can legally sell the land?
Reply by LawRato
If you are a co-owner of the land with your mother in India, you need to provide your consent for the sale of the land. As you are currently residing in the USA, you can provide your consent through a Power of Attorney (POA) given to someone you trust in India, such as a family member or a friend. A POA is a legal document that gives a person the authority to act on your behalf in legal or financial matters, including the sale of property.
It is advisable to consult with a lawyer to ensure that the POA document complies with the legal requirements in India and to understand the implications of granting a POA to someone. You may consult with a lawyer who will guide you after understanding the facts of your case better. You can do so by clicking on the link below -
Top Property Lawyers in India
Meeran
Can a co owner sell his/her share of the property if he/she is not allowed to do so as per the Sale Deed/Purchase Deed (Agreed by both the owners)
Reply by LawRato
A co-owner can sell his share of the property with the consent of all other joint-owners. You can consult with a lawyer, and after he/she understands the clauses of of your Agreement, you may be directed to sign another agreement or memorandum of understanding between the joint-owners.
You can consult a property lawyer by clicking on the link below:
Expert Property Lawyers in India
savita
My flat is jointly hold by me and my mother in law. she expired last year. so who will get the ownership of the flat
Reply by LawRato
If there is joint-ownership and one of the owners dies, such share automatically transfers to the other owner / owners of the property. However, if they are tenants in common, in case of death, his/her share(s) pass on to the legal heir.
Khadija
We have a flat on an emi my dad has a first name in the property and my brother has a second name now he denies to pay the emi nor he leaves here can we put a leagal action on him to remove his name
Reply by LawRato
In order to remove one co-applicant from your home loan agreement and ownership deed, you can ask your lender for a novation. A novation is a statement that the loan reimbursement obligation is shifted to just 1, rather than 2 individuals.
Prince
My father bought a 3 room house with my uncle and than he constructed 2 more floors to that house and now my uncle is claiming half share of the whole property.... Is it legal.
Reply by LawRato
It is important to understand the details given in the agreement(s)(if any) signed between your father and uncle to this effect. Only after understanding the terms and conditions upon which the property was bought, shared, divided and built upon, can you be given proper legal advice.
Since your question is specific and requires more information in order to guide you better, it is advised that you click on the link below and send in your query for Free Legal Advice.
Free Legal Advice by Expert Lawyers
Sunny
Took home loan to buy flat(owner is mom).Cant claim tax benefit on loan.I am not co-owner. After Gift deed, To avail the whole tax benefit, % of share in property wont affect this
Reply by LawRato
Since your question is very specific and requires more information in order to guide you better, it is advised that you click on the link below and send in your detailed query for Free Legal Advice.
Free Legal Advice by Expert Lawyers
madan lal garg
family partnership firm (lease property) me 1 bhai apna share family me 50,% trasfer kar deta he to u p me stamp duty kitni deni hogi
Reply by LawRato
Stamp duty varies from State to State in India. Since your question requires more information in order to guide you better, it is advised that you click on the link below and send in your query for Free Legal Advice.
Free Legal Advice by Expert Lawyers
P Roy
I have land property jointly with vousins.one has given a power of attorney to a stranger.can thst personn sell land without informing me?
Reply by LawRato
Co-owner can sell only his share of the property, however, he cannot sell the entire land / property without the consent of the co-owners. Thus, even if there is a power of attorney involved, entire land cannot be sold without your consent.
Prabs
Me & my brother are owning a flat. He had paid his share in cash but I pay my share via partial (80%) loan. Now my brother denies to sell the property. How can I take my share?
Reply by LawRato
The Transfer of Property Act permits a co-owner of a property to independently sell or transfer his share in the property the way he wishes. Thus, in case the co-owner is not willing to sell the entire property, you may move forward with selling your undivided share in the property.
Ravish kumar
A constructed house has 4 co-owners and what if 1 co-sharer want to sell amd get his share but rest 3 co-sharers are not willing to sell . What remedy is available for that 1 co-sharer ?
Reply by LawRato
A co-owner can sell his share in the property without the consent of the other co-owners as per provisions of the Transfer of Property Act (Section 44).
Ganesh G Garag
My father has sold his property to me by registering sale deed will my sister claim for the same property after father death
Reply by LawRato
No, your sister cannot claim property after your father's death. Once a sale deed is registered, it is a legally binding document that transfers ownership of the property to the buyer. This means that you are now the sole owner of the property and your sister has no legal claim to it since the self-acquired property was sold to you.
Kartik
Can I buy a property with my girlfriend as a co-owner?
Reply by LawRato
Yes you can buy property with your girlfriend as co-owner. The most common manner in which unmarried couples may purchase a property is as tenants in common.
Sadesh kumar pal.
Can a co-owner of a particular property can make a will in favour of his daughter after his death for his share in the said property?
Reply by LawRato
Yes, a co-owner can make a Will in favour of any person for his share in a joint property, unless barred by a right of survivorship clause in the title documents. It is recommended that you consult with a family lawyer to understand the right direction after your facts and cisrcumstances are stated in detail.
P Rao
Can a father jointly purchase property with daughter, by sharing 30% cost,?
Reply by LawRato
Yes, there is no embargo in law preventing a father and daughter to purchase a property together. Such a property will be held by the father and daughter as co-owners, with each having an independent right over their share in the property.
UVb
My sister and i a co owner of a flat .. she has kept a roommate without my consent and m not comfortable with him ..can I ask the roommate to leave as a 50 %owner or the property?
Reply by LawRato
Yes, you can bring the tenancy to an end as consent of all co-owners is essential before the property can be rented. Also, a legal notice can be issued to your sibling, not to rent the property without your consent in the future.
UVb
My sister and i a co owner of a flat .. she has kept a roommate without my consent and m not comfortable with him ..can I ask the roommate to leave as a 50 %owner or the property?
Lakshmi
My father and my father brothers having joint land now my fathers brother is selling whole land how to i get my share in that land
Reply by LawRato
A co-owner is entitled to the right to possess, use, and dispose off (sell) their share in the property. Please note that the co-owner can only sell their share in the property. If they want to sell the entire property they will have to obtain a consent agreement for partition of the property from the other co-owner. For best advice/consultation, please contact a property lawyer.
Alok Singh
I have a property in joint name with my wife, and I have been paying complete installments from my account. Can I legally get complete ownership of the same??
Reply by LawRato
Co-ownership or joint ownership indicates that two or more persons have an interest in a peoperty. Joint ownership can take the form of sole ownership when a co-owner transfer their share in property to the other co-owner or through partition. For best advice, you can consult a property lawyer.
Kunal kumar
Is it possible to purchase propert in greater noida in the name of wife and mother together?
Reply by LawRato
There is no law which specifically lists persons or relations who can be the co-owners of property jointly. Generally, both lenders and sellers prefer close relatives of a person such as a spouse, parents, and children as the co-owner. Although property can be bought in the name of the wife and the mother together, regardless of the area, it is ultimately at the discretion of the seller.
Vikas
Can wife (co-owner) restrict husband (co-owner) to collect handover of a jointly owned flat?
Madhu
Legal co owner are husband and wife .after husband death all legal heir like wife son and daughter are the legal heirof that property or it will be transferred to only wife
Kapuresh
Legal heirs are co owners, if after death of husband can wife and son are legal heirs of property, can one legal heir sell their undevided property
Popular Property Lawyers
Related Articles
- how to get building completetion & occupancy certificate
- Can a Gift Deed be challenged in India? - Property Gift Deed Rules
- Sons and Daughters Rights in Father's Property
- Illegal Possession of Immovable Property/Land
- Joint Ownership of Property
- Family Property Dispute Legal Solution
- Transfer of Property to Legal Heir after Death
- How to Resolve Land Dispute
- How to sell property in pagdi system
- Grandson's Right in Grandfather's Property
- Hakka Sod Patra in Maharashtra
- How to get succession certificate
- Property Document Verification in Bangalore
- Ancestral Property Partition and Family Rights
- How to send property partition legal notice?
Legal Questions Answered by Top Lawyers
Answer
Have you made khatha as per the will in names of all three of them ?How you have shown in the sketch the common area. Have your Uncle and aunt taken permission from the corporation when they constructed Water sump in the common area ?
Now if you want to construct a third sump in the common area without causing any issue to them, if they are not allowing me to do the same, you can file a suit asking the court for direction against them from preventing you to do it.
Read
More
Answer
Adding another owner (as co-owner) to your property can be done through:
Sale Deed : You can include your Spouse’s name in the new sale deed mentioning the ratio or portion of the ownership and get it registered.
Gift Deed : You can also share the ownership by gifting it to someone. In this case, you will need to get a gift deed executed on a stamp paper and register it at the registrar’s office.
Read
More
Answer
The term property in common parlance indicates the economic status of a person. Any property is held by an individual to draw out benefit from it. Transfers are made by owners themselves, ostensible owners and the co-owners or we can say joint owners. When two or more persons enjoy common ownership of a property, for example say in a coparcenary, the male members and now even daughters have a common and an equal interest in the ancestral property, any co-owner can transfer his own share in the property to a stranger or another co-owner. And that transferee steps in the shoes of the co-owner (transferor) and gets clothed with all his assets and liabilities. We can say that the transferee becomes the co-owner.
Section 44 of the Transfer of Property Act, 1882, deals with transfers by one co-owner. It also deals with the rights of a transferee in this type of a transaction.
In my project I have dealt with the following topics-
# Who is a co-owner
# What are the rights and liabilities of a transferee under this section
# Can a co-owner make a transfer without the consent of other co-owners
# What is a dwelling house and undivided family for the purpose of this section.
I have also dealt with various case laws. For the purpose of better understanding I have divided the project in parts.
EXPLANATION OF SECTION 44 TPA, 1882 ( With reference to Section 4 of the Partition Act, 1893)
Section 44 says -
Transfer By One Co-Owner- Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, so far as is necessary to give effect to the transfer, the transferors right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
This section of Transfer of Property Act deals with rights and liabilities of a transferee from a co-owner, as to the enjoyment of the property transferred ( should be immovable for this section). The first part of the section merely incorporates the principle that a person who takes transfer from another, steps into the shoes of his transferor, and is clothed with all the rights and becomes subject to all the liabilities of his transferor. In short, we can say that he becomes as much a co-owner as his transferor was before the transfer. The second part of the provision provides an exception to the general rule stated in the first part and is based on convenience. It is designed to prevent an outsider from forcing his way into a dwelling house in which other members of the transferors family have a right to live.
But the remedy is to claim partition. When we read the section there are some terms which we need to understand like-
Who is a co-owner ?
Legal Competency of a Co-owner to Transfer ?
Rights and liabilities of a transferee from a Co-owner ?
What is a dwelling house and Undivided family ?
Who Is A Co-Owner ?
Ownership consists of innumerable number of claims, liberties, powers with regard to the thing owned. Ownership is of different kinds. There are absolute and limited, sole ownership, co-ownership, vested ownership, contingent ownership, corporeal, incorporeal. When a person owns a property in one time it is called sole ownership, but if the property is owned by more than one person then it is called joint ownership. By means of partition one can have co-ownership changed into sole ownership.
The expression co-owner is wide enough to include all kinds of ownership such as joint tenancy, Tenancy in common, Coparcenary, membership of undivided Hindu family, etc. The very fact of the reference to the property that the parties have certain shares, indicates that they are co-owners.
In Indian Law a co-owner is entitled to three essentials of ownership-
# Right to possession
# Right to enjoy
# Right to dispose
Therefore, if a co-owner is deprived of his property, he has a right to be put back in possession. Such a co-owner has an interest in every portion of the property and has a right irrespective of his quantity of share, to be in possession jointly with others. This is also called joint-ownership.
The following are the types of co-ownerships:
Tenants in Common
When the type of co-ownership is not specifically stated, by default a tenancy in common is likely to exist. Each tenant in common has a separate fractional interest in the entire property. Although each tenant in common has a separate interest in the property, each may possess and use the whole property. Tenants in common may hold unequal interest in the property but the interests held by each tenant in common is a fractional interest in the entire property For e.g. B owns a 25% interest in the property and A owns a 75% interest. Each tenant in common may freely transfer his/her interest in the property.
Tenants in common do not have the right of survivorship. Therefore, upon the death of one tenant in common, his/her interest passes via will or through the laws of intestacy to another persons who will then become a tenant in common with the surviving co-owners.
Joint Tenancy
The most attractive feature of joint tenancy is the right of survivorship. Upon the death of one joint tenant, his/her interest immediately passes to the surviving joint tenants and not to the decedents estate. Joint tenants hold a single unified interest in the entire property. Each joint tenant must have equal shares in the property For e.g. B and A each hold a 50% interest. Each joint tenant may occupy the entire property subject only to the rights of the other joint tenants.
Unlike tenants in common, joint tenancy has several requirements that must be met in order to be properly created. Massachusetts law requires that in order for a joint tenancy to be created specific language must be included in the conveyance or devise. Such language includes that the grantees take the land: "jointly"; "as joint tenants"; "in joint tenancy"; "to them and the survivor of them"; or using other language in the instrument that it was clearly intended to create an estate in joint tenancy. However, even if such language is contained in the conveying instrument, a joint tenancy may not exist. There are four additional common law requirements necessary in order to create a joint tenancy.
The four unities are
(1) Unity of time. The interests of the joint tenants must vest at the same time
(2) Unity of possession. The joint tenants must have undivided interests in the whole property, not divided interests in separate parts
(3) Unity of title. The Joint tenants must derive their interest by the same instrument (e.g. a deed or will)
(4) Unity of interest. Each joint tenant must have estates of the same type and same duration. All four unities must exist. If one unity is missing at any time during the joint tenancy, the type of co-ownership automatically changes to a tenancy in common. A joint tenancy may be created by a will or deed but may never be created by intestacy because there has to be an instrument expressing joint tenancy. A joint tenancy is freely transferable.
Read
More
Answer
They co-owned a house and Sanjay insisting on dividing all the things between the two, got hold of a lawyer to handle his claim. The lawyer, after feeding some legal mumbo jumbo to Mughda, convinced her that she did not have a stake in the house.
Little did she know that she had equal rights to the house! All this because of Mughda's ignorance about the rights of a co-owner.
Who is the co-owner of a property?
Co-ownership, or joint ownership, simply put is when two or more persons hold title to the same property.
What are the types of co-ownership?
Tenants in Common: When two or more people buy a property but do not specifically mention the share that each has in the property, a 'tenancy-in-common' is said to exist. All the co-owners can use the entire property and every co-owner is deemed to be having an equal share in the property.
Upon death of one of the co-owners, the interest in the house does not pass to the other co-owners but to the person named in the will of the deceased, who will then become a tenant-in-common with the surviving co-owners.
Joint tenancy: Joint tenancy is a form of co-ownership where property is owned by two or more persons at the same time in equal shares. This type of tenancy provides rights to ownership of the property for the co-owners who outlive other co-owners.
Unlike tenants-in-common, when one joint tenant dies, his/her interest automatically passes on to the surviving joint tenant(s). There are four legal requirements necessary in order to create a joint tenancy:
Unity of time
Unity of possession
Unity of title
This legal requirement simply means that the co-owners need to take the same title at the same time, same deed and with equal interests.
Tenancy by entirety: This is a special form of joint tenancy when the joint tenants are namely the husband and wife -- with each owning one-half.
Neither spouse can sell the property without the consent of the other. In this type of tenancy also, the share of ownership of one co-owner automatically passes on to the co-owner who outlives the other. Apart from the four aspects mentioned in joint tenancy -- unity of time, possession and title -- another aspect is also the key here.
This last aspect is the unity of marriage, which can be terminated only by divorce, death or mutual agreement of both the spouses. However, such a termination will result in the type of ownership to be converted to 'Tenancy in common', explained above.
In the event of such an occurrence, it is important to brush up the laws involving transfer of property to be clear about one's rights.
What are laws related to transfer of property by a co-owner?
Section 44 of the Transfer of Property Act 1882 deals with transfer by a co-owner and it also deals with the rights of a transferee in this type of a transaction.
According to the Transfer of Property Act every joint or co-owner has a proprietary right of the entire property. Hence, any sale has to be done with the consent of all co-owners involved.
If, however there are specific conditions in the agreement that gives co-owners exclusive rights to certain parts/portions of the property, a co-owner can sell his portion to whom he chooses.
However, a currently dwelling house is an exception to this rule, where consent has to be sought from both co-owners who jointly own the house.
What are the rights of a co-owner?
A co-owner is entitled to three essentials of ownership:
Right to possession
Right to use
Right to dispose off his share of the property if it is clearly stated, in the deed.
Therefore, if a co-owner is deprived of his property, he has a right to be put back in possession. For example, in Mughda's case, she can rightfully claim her share in he property.
Why is co-ownership better?
If you are a married couple, co-owning a house it with your spouse has many benefits. Both can get tax benefits. In case of a joint ownership, the husband as well as the wife individually will be able to claim deductions under Section 24 of the Income Tax Act, for up to Rs 150,000 for interest.
You can claim tax benefits for your principal amount under Section 80C for a maximum of Rs 100,000. It also enables you to bargain for a bigger loan amount by clubbing your spouse's income. It also enables easy transfer of property to your children.
Read
More
Answer
Please tell where is the property located. Is there any loan against the property, if yes then you have to seek permission of the bank also.
As it being flat, you have to refer to flat buyer agreement in that there will be a transfer clause stating that administrative charges for transfer (which may range from 20-25 %).
To save that amount it is better you make a will.
However, you can a share the ownership by gifting it. But in this case, you will need to get a gift deed executed on a stamp paper and register it at the registrar's office. A gift to a relative is not taxable. However, if you gift the property to a non-relative, the value of the house is treated as income and taxed according to the income tax rules for the relevant year.
The stamp duty is generally 2% of the value of the property, along with 1% registration charge.
Read
More
Answer
In order to respond to your queries, we are assuming that your uncle is a Hindu and, therefore, succession to his estate would be governed by the Hindu Succession Act, 1956.
Section 8 of the Act lays down the general rules of succession in the case of Hindu males who have died intestate and inter-alia states that the property of such a male Hindu shall devolve firstly, upon the heirs of the deceased, being class I heirs. And secondly, if there are no class I heirs, then upon the class II heirs. This section also states how property will devolve if there are neither class I nor class II heirs.
Class I heirs take an equal share and simultaneously. If there are no class I heirs, then the estate in question devolve on the class II heirs.
In your case , let's assume that the property was self acquired. if the property is self acquired than in order to dispose of the property without any dispute ,your uncle may draft a will stating you as a future owner of that property.Further, a nominee through a will becomes entitled to the interest in the shares upon the event of death of your uncle. Or, if your uncle wants to add your name as present owner of the property, then he may furnish a gift deed in your favour.
Only in the event that there is no nominee, the provisions of Hindu Succession Act, 1956 will govern.
Read
More
Answer
If you do not have any loan or mortgage over the said property, then the easiest way to remove your name from the joint names, is if you were to execute a release deed or relinquishment deed in favour of your wife with respect to 50% share that you are the owner of, then she in turn becomes the full and absolute owner of the said property.
For this, both you and your wife will have to go to the sub-registrar office where the property is situated and you as the first party execute the release or relinquishment deed in favour of your wife the second party, this document will be duly registered and she can thereafter get the Katha transferred absolutely into her name.
Since the transaction is between husband and wife, there is a fixed stamp duty that will have to be paid.
It is as simple as above.
Read
More
Property Law Articles
User Reviews
4.6 - 25 reviews
Nice article. Please provide more info on co-ownership disputes
very good articl on joint ownership
do u require consent of partner to sell joint property?
what to do if co-owner is not ready to sell the property?
need a property lawyer. How to find on lawrato?
good advice. Who can I contact for my legal issue?
thank you for the information
good work
can you share your helpline number
how to contact a lawyer for my legal case?
how to contact a lawyer from your website
good legal subject
very good article. Can you tell me more about the law?
Thanks for the detailed article.
thanks for the information
nice work. Learned a lot. Thanks
I have legal query. Who can I call?
Understood the subject with clarity.
Very informative and a good read as well.
Helped a lot in understanding the law.
Gave me a very clear idea of the subject.
nicely explained. Thanks fro the information
helpful in understanding the law
good work. Keep it up
Very good article
VIEW ALL