QUESTION: I've just read an article you wrote in The Sunday Gleaner on May 8, 2011 titled 'Transfer of Property to Living Trust' and I would appreciate your counsel on a similar matter. My mother and aunt are joint tenant property owners for land in Old Harbour, St Catherine. My aunt wishes to transfer her share of the property to me via inter vivos gift, thereby making my mother and me joint tenants.
What are the steps to be taken in order to effect the transfer? What documents would be needed in order to effect the transfer? What are the fees, considering that the transfer is a gift? Thanks in advance for your time. I look forward to your expert advice.
If two or more persons hold an estate or interest in land, they are required to state whether they hold the estate or interest as joint tenants or tenants-in-common. It is very important to understand the difference between the two as how property is owned has serious implications for the ability to transfer it.
Due care should be taken when two or more persons are coming into ownership of property to understand the difference and thus register their ownership in a way that will not cause undesirable complications in the future.
Let us examine the two types of ownership.
Joint tenants have a right of survivorship. This means that if John and Celia own land as joint tenants and either of them dies, the interest of the deceased joint tenant automatically passes to the survivor. So if John dies, his interest passes to Celia, who then becomes the owner of all of the property. If the property is owned by three persons, the death of one joint owner/tenant would result in his or her share effectively passing to the two survivors.
What is the meaning of this? It means that the joint tenant does not have an interest in the land that he or she can leave in a will unless he or she is the sole surviving joint tenant. In our example, upon the death of John, Celia is able to bequeath or gift the property to whomsoever she wishes. If there is a third joint tenant, only the last surviving joint tenant, two having died, can bequeath or gift the property to another person.
When a joint tenant dies, the death is noted by the filing of an 'Application to Note Death'.
To create a joint tenancy, the following rules must be satisfied:
n All the joint tenants must acquire their interest in the property at the same time and from the same transaction; and
n The interest must be identical in nature and each tenant enjoys an equal right to the whole or any part of the property but not an exclusive right to possess any part.
Unlike joint tenants, tenants-in-common do not have the right of survivorship. When a tenant-in- common dies, his or her interest in the property passes under the terms of his or her will, or if he or she dies leaving no will, the interest is distributed under the Intestate Estates and Property Charges Act. In this case, with John and Celia as tenants-in-common, John's share of the property passes to whomever he wills it to.
The tenant-in-common has an undivided share and interest in the property. He or she has an equal right to the possession of the whole of the property but not a right to possess any part exclusively. A tenant-in-common may deal with his or her share of the property as he or she sees fit, such as giving it as a gift.
Tenants-in-common may also hold unequal shares in the property. If no share is stated, the presumption is equal shares, that is, 50/50 if there are two tenants-in-common or 25% each in the case of four tenants-in-common.
Although your aunt is not now able to transfer her interest in the property to you, you can become its owner, in its entirety, if you outlive the current owners and if it is the desire of the survivor to pass it to you. As soon as either your mother or aunt dies, it would make sense for the survivor to make a will stating very clearly who the beneficiary should be you alone or you and others.
Alternatively, given the uncertainties we all face, it would be prudent, if their current wills do not have a residuary clause, for them to make new wills with such a clause to facilitate the disposition of assets not mentioned in their wills. They may also amend existing wills but certain procedures must be followed.
You could still get your inter vivos gift if you outlive one of the current owners. The survivor could choose to gift the property to you - in part or whole - upon becoming its sole owner.