Land Law Ass 1

UNIVERSITY OF ZAMBIA
NAME : BANDA MANASSEH
MODE OF STUDY : DISTANCE
PROGRAMME : LLB
COURSE : LPR 3920
TUTOR : MR GREENWELL LYEMPE

ASSIGNMENT NUMBER : 01
COMPUTER NO. : 19001822
DUE DATE : 31ST May, 2022.
PHONE NUMBER : +260 0966063672
EMAIL ADDRESS : [email protected]
1
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INTRODUCTION
Co- Ownership- A legal term which refers to the ownership of property,

personal or real, by more than one person. (Black`s Law Dictionary)1
Co-ownership (Concurrent Interests in Land)

Ownership of land may be vested in a single person or in two or more persons.
Concurrent Co-ownership of property describes the simultaneous enjoyment of
land by two or more persons. The law of Co-ownership operates whenever two
or more people enjoy the rights of ownership of property or land at the same
time. The Co-owners may be husband and wife, business partners or friends.
Provisions of the Lands and Deeds Registry Act Relating to Co -

ownership
Section 51 of the Lands and Deeds Registry Act (Cap 185)2 provides that:-
1) Any two or more persons named in any instrument under Parts III to VII, or
requiring to be registered under this Act as transferees, mortgages, lessees or
proprietors of any land or estate or interest therein, shall, unless the contrary is
expressed, be deemed to be entitled as joint tenants with right of survivorship,
and such instrument, when registered, shall take effect accordingly.
2) Any statement or reference contained in any document or instrument

mentioned in subsection (1) which specifies the shares in which the property is to
be held shall deemed to express that a joint tenancy is not to be created. When
two or more persons are entitled as tenants in common or joint tenants to
undivided shares in any land, only one Provisional Certificate or Certificate of
Title shall be issued in respect of that land, and the Certificate shall be handed
1Black`s Law Dictionary 6th edition, Centennial edition. (1891) St Paul, Minnesota West
Publishing.
2 Chapter 185 of the Laws of Zambia.
2
or delivered to the person whose name first appears as a Register Proprietor on
such Certificate and, on any transfer of any undivided share or interest in such
land, the Provisional Certificate or Certificate of Title, as the case may be, shall
be cancelled and a new Certificate issued.
Joint Tenancy
According to Dixon, M in land law3 states that; If co-owned land is subject to a
joint tenancy, each co-owner is treated as being entitled to the whole of that
land. There are no distinct ‘shares’ and no single owner can claim any greater
rights over any part of the land than another. Although as between themselves,
joint tenants have separate rights against everyone else i.e. they are in a
position of a single owner. Each joint tenant owns the total interest in the land,
along with the other joint tenants. The nature of the joint tenancy as a single
title owned by more than one person is reflected in the legal attributes of a joint
tenancy discussed below.
shares which have not yet been divided. In other words, a tenant in common
can point to a precise share of ownership of the land e.g. one half, three
quarters, etc.
The Right of Survivorship (Jus Accrescendi)
By virtue of the principle of Jus accrescendi, if one tenant dies during the
existence of the joint tenancy, their interest in the joint tenancy automatically
passes to the remaining joint tenant(s). The right of survivorship takes
precedence over any attempted transfer by will of the ‘share’ of the dead joint
tenant because there is no such ‘share’ to transfer
Hammersmith and Fulham LBC v Monk4
The determination of joint tenancies by a single tenant.
3 Dixon, M, land law, London, Cavendish Publishing Limited,1994, P.70.

4 (1992) 1 A.C. 478
3
Facts
Monk and Powell held a joint tenancy over a property. Following the
termination of their relationship Powell desired to end her tenancy and was
given a new tenancy by the local council on the condition that her existing
tenancy be determined and ended. Thus, the tenant provided the council with
a notice to quit, allowing them to seek possession of the house. She
subsequently sought to withdraw her notice, but the Council proceeded to
possess the property anyway, issuing a notice to Monk that he ought to vacate
the property.
Decision
The Court held that the tenant’s right to occupy the original property was
grounds for few protections and that strong security of tenure did not stem
from a joint periodic tenancy. In this case, it suffices for one of the tenants to
give notice to quit, permission from both is not necessary. Further, the
continuation of a joint tenancy requires all of the joint tenants to desire its
continuation. Here, the Court viewed that the matter was relatively
straightforward, utilising the analogy of contract law to state that should
determination of a contract rest upon the consent of all signatories, it supposes
that in the absence of one party’s consent, the other signatories have effectively
entered into an indefinite contractual obligation. Such a supposition is
unreasonable and does not reflect the likely intentions of the parties at the
time of contracting. The same holds in application to tenancy contracts, and so
the desire for determination by one joint tenant suffices for the ending of the
whole tenancy.
TENANCIES IN COMMON
And Hayton, D. H in Megary’s Manual of the Law of Real Property5 clearly
say; unlike with joint tenancies, in tenancies in common the co-ownership
5 Hayton, D, megarry`s manual of the law of real property, 6th ed, London, ELBS, 1982, p.299.
4
arrangements are such that each of the co-owners holds a distinct share, or
proportions of entitlement. Tenancies in common take effect only in equity like
in the case above. The Law of Property Act 1925 s.1(6) describes tenants in
common as holding land in ‘undivided shares’; the word undivided is said to
mean that the co-owned land has not been divided physically. There are two
defining characteristics to tenancies in common, both of which set tenancies in
common apart from joint tenancies:
1. There is no right of survivorship between tenants in common, and

2. The only unity which exists between the tenants in common is the unity
of possession.
No right of survivorship
There is, unlike joint tenancies, no right of survivorship between tenants in

common. The size of each tenant in common’s share is defined, finite and fixed;
it is unaffected by the death of any tenant in common. Upon the death of any
tenant in common, their share passes on to whomever is named in their will or
intestacy as the person to receive the tenancy in common.
Joint tenancies have two characteristics in particular that distinguish them

from tenancies in common. First, joint tenancies provide a right of
survivorship. Second, joint tenancies always require the presence of the so-
called four unities
Wright v Gibbons6
Co-ownership of property and whether a deed transferring a joint tenancy to

one of the other joint tenant severed the tenancy
Three sisters, the Gibbons, jointly owned a property and subsequently two
sisters tried to sever the tenancy by creating and registering a document where
6 (1949) 78 CLR 313
5
they transferred their interests to each other. The tenancy was thus presumed
to become a tenancy in common. When the two sisters who had transferred
their interests later died, the remaining sister sought to invalidate this earlier
presumption, claiming that a joint tenancy had endured.
The High Court found against the Gibbons sister, and held that where a joint
tenant transfers their interests to a third party, the third party becomes a
tenant in common of the property, rather than a joint tenant. Moreover, this is
so regardless of whether the joint tenant transferred their entire interest or part
of it. Thus, the effect of registration of the transfer of a joint tenancy interest is
to sever the tenancy, making both parties tenants in common in cases with two
joint tenants, or in circumstances with three or more joint tenants, then it is
the tenant who has had their interest severed that becomes a tenant in
common alone, whilst the others retain their status as joint tenants. The
implication of this is that the effect of a joint tenant dying is that their interest
is thus extinguished whilst the remaining joint tenants experience a
proportionate enlargement of their interests.
The Four Unities
Before a joint tenancy can exist, the four unities must be present and it is the
presence or absence of these factors that enable us to distinguish a joint
tenancy from a tenancy in common. The four unities of a joint tenancy are the
unities of possession, interest, title and time.
Unity of Possession
This unity applies to all forms of Co- ownership. The unity of possession means
that each joint tenant is entitled to physical possession of the whole of the land
(like in the case of Bull V Bull7. Unity of possession means that there may be
no physical division of the land and no restriction on any joint tenant’s use of
7 (1955) QB 234
6
each and every part of the land and this includes the right to participate fully
in the fruit of possession, such as receipt of rents and profits derived from the
land.
The Unity of Interest
The unity of interest means that each joint tenant’s interest in the property
must be identical in extent, nature and duration. This means that no joint
tenancy is possible between a fee simple owner and a lease holder. Different
qualities of right are inconsistent with the nature of a joint tenancy as a single
title, jointly owned.
The Unity of Title
The unity of title means that each joint tenant must derive their title (i.e.
ownership) from the same document or act. All joint tenants must have derived
their title from the same document or conveyance.
The Unity of Time
The unity of time means that the interest of each joint tenant must arise or
vest at the same time as befitting their ownership of a single title.
CONCLUSION
In conclusion, co-ownership interests in land deals with cases where two or
more persons are entitled to the simultaneous enjoyment of land. Two forms of
co-ownership today. These are joint Tenancy and Tenancy in common. In a
joint Tenancy, each co-owner is treated as being entitled to the whole of the
land and there are no distinct `shares` . Depending on the above analysis,
because the house was conveyed to the three of them as “as joint tenants in
law and equity”, Lester Nakachunda becomes the absolute owner going by
virtue of the principle of Jus accrescendi, if one tenant dies during the
existence of the joint tenancy, their interest in the joint tenancy automatically
passes to the remaining joint tenant(s). The right of survivorship takes
precedence over any attempted transfer by will of the ‘share’ of the dead joint
tenant because there is no such ‘share’ to transfer
7
BIBLIOGRAPHY
CASES
Bull v. Bull (1955) QB 234).
Hammersmith and Fulhum LBC v Monk (1992) 1 A.C. 478
Wright v Gibbons (1949)78 CLR 313 (HC
BOOKS
Black`s Law Dictionary 6th edition, Centennial edition. (1891) St Paul,
Minnesota West Publishing.
Dixon, M, land law, London, Cavendish Publishing Limited,1994, P.70.
Hayton, D. H. (1982), Megary’s Manual of the Law of Real Property, 6th Ed.,
London
Zambia Land Alliance (2005) Communities' views on the land policy: draft land
policy review consultation process in Zambia, Lusaka, Zambia Land Alliance
STATUTES
The Lands Act, CAP.184 of the Laws of the Republic of Zambia, Lusaka,
The Lands and Deeds Registry Act CAP.185 of the Laws of the Republic of
Zambia
Land Acquisition Act CAP.185 of the Laws of the Republic of Zambia
8
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UNIVERSITY OF ZAMBIA

NAME : BANDA MANASSEH

MODE OF STUDY : DISTANCE

COURSE : LPR 3920

TUTOR : MR GREENWELL LYEMPE

COMPUTER NO. : 19001822

DUE DATE : 31ST May, 2022.

PHONE NUMBER : +260 0966063672

EMAIL ADDRESS : [email protected]

Co- Ownership- A legal term which refers to the ownership of property,

Co-ownership (Concurrent Interests in Land)

Provisions of the Lands and Deeds Registry Act Relating to Co -

2) Any statement or reference contained in any document or instrument

2 Chapter 185 of the Laws of Zambia.

The determination of joint tenancies by a single tenant.

3 Dixon, M, land law, London, Cavendish Publishing Limited,1994, P.70.

1. There is no right of survivorship between tenants in common, and

There is, unlike joint tenancies, no right of survivorship between tenants in

Joint tenancies have two characteristics in particular that distinguish them

Co-ownership of property and whether a deed transferring a joint tenancy to

6 (1949) 78 CLR 313

The Four Unities

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