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Co-ownership of property and conveyancing aspect of testate and intestate property succession may be held by more than one person – i.e. co-owners either as joint tenant or tenants in common. Practical problems may arise in conveyancing when dealing with property owned by more than one person or co-owners. Co-ownership arises where two or more persons buy together a leasehold or freehold property. There are two kinds of co-ownership: a joint tenancy a tenancy in common
Where there is a joint tenancy the co-owners are treated as though they are welded together into one single body. Under tenancy in common each co-owner owns an equal undivided share in the property. In practical terms, the conveyance or transfer will ordinarily contain an express declaration of that which is otherwise implied i.e. they hold as joint tenants or that they hold as tenants in common.
Co-owners always hold the legal estate as joint tenants under a trust of land for themselves. A feature of a joint tenancy is the right of survivorship. It follows that, on the death of one, of two co-owners, the surviving co-owner is solely entitled to the legal estate. The beneficial interest on the other hand, may be held by them either as joint tenants or as tenants in common. If joint tenants, survivorship will also apply to the beneficial interest, leaving the survivor the sole beneficial owner. Note that if the deceased co-owner was a tenant in-common, his or her share in the property will devolve on his or her estate. In this case the survivor is sole legal owner holding the property on trust for him or herself together with the estate of the deceased. The trust therefore continues and to show a good title, i.e., to enable overreaching to operate, the survivor must appoint a co-trustee. If the property is held as joint-tenants, all that is necessary is to show the death certificate of the deceased co-owner/trustee since the co-owners are trustees for themselves.
Note however that there is a maximum permitted number of four trustees. Thus, if the conveyance is to more than four, the first four named will hold the legal estate upon trust for themselves and the other(s). It is also crucial to note a joint tenancy can be severed at anytime by service of a notice of severance by one co-owner on the other(s). However, in order to protect a buyer of unregistered land where this has happened, the ideal thing is that the survivor of beneficial joint tenants is normally assumed to be solely and beneficially entitled if the conveyance contains a recital or statement that the seller is solely and beneficially entitled and:-
l there is no Memorandum of Severance endorsed on the conveyance on the conveyance to the joint tenant.
l there is no bankruptcy entry against either joint tenant (bankruptcy is automatic severance, as the trustee takes over the bankrupts’ interest in the property.
Note further that if there is no indication on the face of the document as to the nature of how the property is held by co-owners, the assumption is that they are joint tenants and that they took the interest under the same document of title and at the same time. But note that an equitable presumption against a joint tenancy will arise when:
l there has been an unequal contribution to the purchase price
l the property is partnership property.
Sale by personal
representative
Note that the grant of representation is a document of title. It vests the legal title of the deceased on an administrator and confirms the legal of an executor depending upon whether one is dealing with testate or intestate succession. The grant must therefore be produced, and a certified or official copy handed over on completion. The Will is irrelevant, as it gives no power to deal with the legal estate.
Sale by Beneficiary Under A Will Or Intestacy
If you are buying from a beneficiary under the Will of the deceased, you will need the probate (or grant of administration) to prove the title of the personal representative (PRs) and assent in favour of the beneficiary.
Once again, the Will is irrelevant. It does not confer any power to deal with the legal title. The assent is sufficient evidence that the person in whose favour it is made is the person it is entitled to the legal estate. See section 36(7) Administration of Estate Act 1925).
However, if the beneficiary is also the PR (i.e. Personal Representative), there is no need to go to the additional trouble and expense of an assent. The beneficiary can sell in his or her capacity as PR. In essence, if the beneficiary is also the administrator or executor, he/she needs not use assent and there is no need to let the buyer know of the beneficial entitlement. The grant of representation gives the PR all the necessary power of sale. Nevertheless where there is a break in the chain of representation, section 7 of the Administration of Estates Act will be applicable or in the case of intestacy, a fresh application will have to be made to the court to appoint new administrator/s would the sole administrator or the last surviving administrator die. Thus extra expenses will be incurred in bringing in a new application. As we can see, one of the advantages in making a Will is that the executor of the sole executor or that of the last surviving executor becomes the executor of the testator who appointed the sole executor or the last surviving executor. The advantage is in continuity. This is not the case with the personal representatives of an intestate. See Section 8 of the Administration of Estates Act, which preserves what appears to be a common law doctrine. It states:
"An executor of a sole or last surviving executor of a testator is the executor of that testator"
The above demonstrates the pulchritude of Will writing.
Under Section 7 of the Administration of Estate Act 1925, where a proving executor dies without having completed administration and in turn makes a Will appointing his own executor, who proves that Will, the second executor takes over the right not just to manage the personal property of the deceased, but also takes over any office of executor which the deceased held. Note however, that this chain is broken by intestacy. Hence, if for instance in 1950, there was this conveyance by Ben Johnson to John Smith and in 1960 John Smith made a Will under which he appointed his wife, Rose Smith, to be his sole executrix and also made her sole beneficiary.
Suppose in 1965, John Smith died and there was grant of probate of his Will to Rose Smith. Suppose also that in 1985 there was a Grant on Letters of Administration to the estate of Rose Smith granted to Naomi Burrows, the sister of Rose Smith and the only person entitled to her estate. Notice that the problem here is that there has been a break in the chain of administration and a grant de bonis non to the estate of John Smith must be taken out. In this case, Rose Smith, by taking out Probate to the will of John Smith, acquired legal title to the property. She did so, however, solely in her capacity as executrix. She was also beneficially entitled under the Will, but, to change the capacity in which she held the property from executrix to beneficial owner, she should have vested the property in herself by means of an assent. See the case of Re Kings Will Trust, which is to the effect that there is no implied assent, even though defacto administration may have been completed.
It follows that, in the absence of any assent in her favour, Rose Smith continued to own, and died owning, the property in her capacity as executrix, technically, the estate was un-administered. The Letter of Administration granted to her sister, Naomi Burrows, show that Rose Smith died intestate. Naomi Burrows, therefore became entitled to deal with Rose Smith’s personal property only, i.e. that beneficially owned by her; and did not take over the right to complete the administration of John Smith’s estate. The grant de bonis non, (a fresh application will have to be made to the Courts to appoint new administers) will be taken out by the person no beneficially entitled to the property. Where there is a potential buyer of such property the matter can usually be resolved by good will between the parties, if the buyer is prepared to wait. Looking at tit the other way round a break in the chain of representation is clear snap in the legal chain of title, as the current seller has nothing to sell, whether the PR or a subsequent buyer, and the buyer can withdraw in such circumstances.
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