The two methods of joint ownership of land are as joint tenants or as tenants in common. The choice of one or the other is usually based on the manner in which each party wishes to dispose of his or her property on death. For example, a husband and wife are likely to purchase property as joint tenants so that the entire property will automatically pass to the survivor after one co-owner dies. (This is called the 'right of survivorship'.) Where the property is owned by siblings or friends, they usually hold as tenants in common, so that each co-owner can dispose of the property in the manner in which he or she chooses to under a will.

Holding property as joint tenants often evokes a feeling of security in both owners that the property will not be disposed of without his or her consent. However, there are methods of severing a joint tenancy to avoid survivorship and thereby create a tenancy in common. The two co-owners could agree to sever the joint tenancy, one co-owner could give notice to the other of his intention to do so, or one co-owner could initiate some action which clearly shows that he does not want to rely on survivorship.

One particular method of severing a joint tenancy, which seems to undermine the premise that supports the two separate forms of holding, is the right of one co-owner to transfer or mortgage his interest in the property to a third party.

There is a Supreme Court decision - Gamble v Hankle - which demonstrates that a transfer from one joint tenant to a third party without the consent of the other joint holder is likely to be upheld and is adequate to sever a joint tenancy.

Facts of the case

The facts of the case are of particular interest. The property in question was owned by husband and wife as joint tenants. The husband died in 1981 and the wife claimed ownership of the entire property in accordance with the principle of survivorship. She then tried to evict Hankle from the property.

A copy of a deed of gift dated November 21, 1980, was tendered into evidence showing that the husband had purported to transfer his interest in the property to Hankle. The wife argued that the deed was ineffective to transfer the husband's interest in the property to Hankle.

Not entitled

Although Hankle was not represented and did not participate in the trial of the matter, the arguments made on behalf of the wife failed. The learned judge ruled that the wife was not entitled to recover possession from Hankle, because the deed of gift was effective to sever the joint tenancy and meant that she could not rely on a right of survivorship to say that she was entitled to the entire property after her husband died. In effect, the court found that the deed of gift was valid, although it had not even been registered.

Despite the fact that the husband had no authority to transfer the entire property to his wife, the case shows that a transfer to a third party by one co-owner of his interest in the property will mean that the other co-owner will own the property with the third party to whom the property has been transferred as tenants in common.

There is, therefore, no real security enjoyed by a joint tenant that the entire property will belong to him or her after the co-owner dies, because each co-owner has a right to take such action as will be effective to sever the joint tenancy during his or her lifetime.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.

Note: There was an error in last week's article. The Bahamas does not participate in the free movement of skilled labour in Caricom.