Buying a property is one of the most significant investments you’ll ever make. But what happens when you’re not going into it alone? Whether you’re pooling resources with a spouse, a sibling, or a business partner, joint property ownership can be a powerful way to get on the property ladder in Kenya. It’s a common arrangement for couples, business partners, chamas, and investment groups alike.
However, many co-owners enter this journey with a handshake and a dream, only to be met with complex legal realities down the road. The difference between “joint ownership” and “co-tenancy” is not just a matter of legal jargon—it’s the key to protecting your investment, your family’s inheritance, and your peace of mind.
- What are the primary laws that govern joint property ownership in Kenya?
The legal framework for co-ownership of land in Kenya is primarily established by two key pieces of legislation:
- The Land Act, 2012: This Act provides the foundational definitions and principles of land ownership in Kenya, including the recognition of co-ownership.
- The Land Registration Act, 2012: This Act outlines the practical aspects of registering land and specifies how different forms of ownership, including joint tenancy and tenancy in common, are recorded and managed in the land register.
- The Law of Succession Act (Cap. 160) dictates how property is distributed upon the death of an owner, with significant differences depending on the type of co-ownership.
- What is the difference between Joint Tenancy and Tenancy in Common?
The fundamental difference lies in the concept of shares and the right of survivorship.
| Feature | Joint Tenancy | Tenancy in Common |
| Shares | Equal, undivided interest in the whole property. | distinct, identifiable shares which can be equal or unequal (e.g., 60/40). |
| Right of Survivorship | The surviving partner automatically inherits | Each share forms part of the deceased estate |
| Transfer of Interest | A joint tenant cannot individually sell or will their “share.” independently. | A tenant in common can freely sell, mortgage, or bequeath their individual share. |
| Creation | Created by a single transfer document at the same time, with all owners having an equal interest and right to possess the entire property. | Can be created at different times and through different documents. The shares of each owner are specified in the title document. |
- We are married; what is the best option for us?
For matrimonial homes, joint tenancy is often ideal. It allows for automatic transfer of ownership to the surviving spouse and bypasses succession processes. However, for investment properties or blended families, tenancy in common may offer better inheritance planning.
- My brother and I are buying a property together. What should we consider?
If you want the surviving brother to automatically inherit the property, go with joint tenancy. If you’d prefer each brother’s share to go to their own family or children, tenancy in common is the safer route.
- My ‘chama’ friends would like to buy property; which is the best option for us?
Tenancy in common is ideal for chamas and investment groups. It allows each member to own a defined share that can be passed on to their family, avoiding the risk of their interest automatically transferring to the remaining members.
- What happens to the property when a joint tenant dies?
The right of survivorship kicks in. The deceased’s share is automatically absorbed by the surviving joint tenant(s), outside the scope of any will or succession process.
- What is the process for the surviving joint tenant to get the title updated?
The surviving owner applies to the Land Registrar with a death certificate. The Registrar then removes the deceased’s name, leaving the survivor as sole owner..
- What happens to the property when a tenant in common dies?
Their share becomes part of their estate. It is distributed according to their will, or—if they died intestate—under the Law of Succession Act.
- Does a will affect a joint tenancy?
No.. A will cannot override the right of survivorship. Any bequest of a joint interest in a will is legally ineffective.
- Can we change the form of ownership from a joint tenancy to a tenancy in common?
Yes, this is possible through a process called “severance.” A joint tenancy can be severed by agreement of all the joint tenants or by one joint tenant acting unilaterally in a way that is inconsistent with the continuation of the joint tenancy (for example, by transferring their interest to a third party, though this can be complex and requires legal guidance). Severing a joint tenancy converts the ownership into a tenancy in common, with each former joint tenant holding an equal share.
- Can one joint tenant mortgage or sell the property without the consent of the other?
No. Because joint tenants have an undivided interest in the whole property, any dealings with the property, such as selling, mortgaging, or leasing it, require the consent and participation of all joint tenants.
- Can a tenant in common sell their share without the consent of the other co-owners?
Yes. A tenant in common has the right to deal with their specific share of the property independently. They can sell it, gift it, or use it as security for a loan without the consent of the other co-owners. The new owner of that share then becomes a tenant in common with the remaining owners.
- What happens if we, as co-owners, disagree on what to do with the property?
Disputes between co-owners are not uncommon. If an agreement cannot be reached, any of the co-owners can apply to the court for an order for the partition or sale of the property. Partition involves physically dividing the property if feasible, while a sale would mean the property is sold and the proceeds are divided among the co-owners according to their respective shares.
Before you sign any Agreement,
Understand the legal consequences of your co-ownership choice. Our team of property law experts in Kenya offers tailored guidance for couples, families, and investment groups. We can:
- Advise you on the most suitable ownership model
- Draft robust co-ownership agreements
- Guide you through title registration and dispute resolution
Secure your investment and your future, with the right legal foundation.
Authors:
Valentine Magato – Conveyancing Lawyer
Contact us : info@wmcoadvocates.co.ke
Disclaimer –This Article is in general terms for guidance only and is not intended to substitute professional advice. While due diligence has been undertaken, in ensuring the accuracy of information provided herein, Waithira M. & Co. Advocates is not responsible for any actions , omissions undertaken as a result of the same.
