Coownership
The rules on co-ownership in Northern Ireland are broadly similar to that in the Republic of Ireland. The principal types of co-ownership are joint tenancy and tenants in common. Joint tenants own land in undivided shares as a single unit. If one dies, the ownership passes automatically to the other. The share cannot be left by will to successors.
Joint tenants are each entitled to possession of the property. None may exclude the other. Their ownership is a single unit, and all must join in order to dispose of it.
Tenants in common hold undivided shares. Unlike joint tenants, they may be entitled to a specific economic share. When a tenant in common dies, his distinct share passes in accordance with his will or on intestacy.
Joint tenants must obtain their ownership at the same time under a common title. If the deed transferring or creating the co-ownership refers to shares or the divisions of respective interests, it will be interpreted as tenants in common at law.
Equity is inclined against joint tenants because it may not affect the underlying economic contribution of each tenant in common. In some cases, that would be deemed to be a joint tenancy at law and tenants in common in equity. In these cases, the joint owners hold their share on trust for themselves or others as tenants in common. Therefore, upon the death of one such joint tenant, the ownership would pass to the other joint tenants, but they must hold the share of the deceased co-owner on trust for his successor.
If parties/owners provide the purchase money to property in unequal shares, equity will presume that they did not intend to hold as joint tenants, which implies equality. The same principle applies to monies paid to redeem in mortgage.
A joint tenancy maybe terminated by severance. This may occur in a number of way such as acquisition of a further interest or purported alienation by one of the joint tenants.
The 1997 legislation provides that the creation of a charge out of voluntarily or under the judgment enforcement legislation severs the interest of the joint tenancies similarly, bankruptcy severs the joint tenancy.
Co-owners may apply to court under the partition acts for order for sale in order to realize their respective share. Generally, an owner who owns at least half will be entitled to an order for sale unless there is a good reason to refuse it. If he owns the circumstances may justify a sale.
An alternative is that a partition of the land takes place. The court has discretion to order partition or sale.
An application for partition and sale maybe made by a third party having an interest such as a mortgagee. The 1997 legislation permits a charge holder to apply for partition or sale.
The Law Commission Proposals
A new principle is proposed whereby a joint tenancy may be severed by a notice to the other owner; a notice must be served, and the severance will not be effective until the copy is registered in the registry of deeds or land registry.
The existing mechanisms of severance are largely preserved.
Where persons die in circumstances where it is not possible to tell who died first. They are deemed to be tenants in common and mutually before their death.
There are new powers for courts to deal with disputes between co-owners. They are broadly modeled under a public while in provision. Interested parties are entitled to make an application to court for an order.