Laws related to co-ownership of a joint property
हिंदी में पढ़ेंApril 14, 2021
By Advocate Chikirsha Mohanty
Table of Contents
What does Co-ownership of property mean?
Co-ownership or joint ownership means when two or more persons hold title to the same property. Co-owners of a property mean all the owners of that particulare 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 off the property.
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What are the types of co-ownership?
There are a few types of co-ownerships. 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 tnenant-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 dont 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. Joint tenancy must have an undivided interests in the entire property, and not divided interests in separate parts. A joint tenancy can be created by a Will or a Deed. Each joint tenantshould have estates of the same type and duration as well.
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 entirity can only be terminated by way of divorce, death or a mutual agreement between the husband and wife. Such terminated tenancy becomes tenancy in common.
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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 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?
A co-owner is entitled to three essentials of ownership:
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Right to possession
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Right to use
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Right to dispose of his share of the property if it is clearly stated, in the deed.
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 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. 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.You can also use LawRato'sFree Legal Adviceservice to get free advice on your case from expert propertylawyers.
Advocate Chikirsha Mohanty
Greater Kailash - 1, Delhi
All Articles by Advocate Chikirsha Mohanty >>
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Legal Questions Answered by Top Lawyers
Hi, This is the Issue i am facing any valuable suggestions are needed. We have a House built on our property which is divided among three, My Mother, my aunt and my Uncle. The will has been made clear that all three of them hold equal rights to the house and the uderlying land including the common area. The problem i am facing is both my Uncle and aunt have constructed a Water sump in the common area. Now when i want to construct a third sump in the common area without causing any issue to them, They are not allowing me to do the same. As my mother too holds an equal right to the common area, can i go ahead with the construction of the sump? Do i need to get any court approval or assistance such that neither my uncle nor my aunt cause any issue. ? What is the best way for this ? Thank you
Answer
You can get a Declaration Order demarcating your portions based on Will, in the property from the Court . You will then have an absolute right over the same and you ca.n have an individual khatha based on the Order. You can contact me for further legal action
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There is a property registered on my parents name while loan is taken on my name,my sister and my parents.The payment for the loan is made from my account. I want to add my name as co owner so that I can get the benefits of home loan.Please suggest the way and what will be the charges. Religion-Hindu. Note not registered as HUF
Answer
This question has been answered by one of our lawyers. See answer below. ....Read More
I have one plot with joint owner. my uncle has used his share to construct home on his part but he is creating hurdle when i started construction on my share. He is putting unnecessary restriction , its like dictating how should i be building my home. He is threatening that if i dont hear he will file case against me thereby stopping me on construction. My concern is that how come he stop me from building home if land belongs to me.
Answer
If the land belongs to you and if you had/have been given share on the property, cetainily, you are having the papers . If yes, you start making construction and if your uncle creats any trouble you can make a petition to the concened police station or to the Sub Divisional Officer or Magistrate to initiate a proceeding under section 107 of code of criminal procedure or you could file a partition suit in the court for division of share.
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Me and my husband are buying a property under a home loan in India. My brother-in-law works in a bank and therefore gets a much lower rate of interest for home loan. So we want him to take the loan for us. But to make this happen we have to add him in the ownership of property but we do not want him to give the full rights. Is it possible.
Answer
Yes it can be possible if the required documents are executed clearly mentioning that he shall not be entitled to any rights in the property and that he will at relevant time relinquish his share as per sale deed in your favour. If you so desire may contact through this website for any clarification and or legal help.
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Hi, I own a flat in Noida which is registered in my and my wife's name. I am the 1st applicant and my wife is the 2nd applicant. I want to transfer my share of property to my wife. How can I do this ? Will gift deed or deed of relinquish be sufficient or any other modality. Further will it involve stamp duty fee
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.
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Hello My maternal uncle is having a property and want to add my name as a co-owner or future owner for that property, pls suggest me what is a best option, he has no kid.
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.
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Hi, We brought a land in Bangalore 4 yrs back. Me and My wife is the co-owner of the property. Now, we are finding some differences and decided to remove my name from the property and to make complete ownership to my wife. Can i get some idea before i head back to India and start removing my name from the deed. Please let me know the step-by-step procedure so that i can well prepared before i make this changes. I really appreciate your help and quick response.
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.
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what to do if co-owner is not ready to sell the property?
do u require consent of partner to sell joint property?
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