Transferring Property Shares to Children Under Joint Tenancy and Tenancy in Common

Pages: 9 Words: 2306

Legal Analysis on Joint Tenancy, Tenancy in Common, Contract Validity, and Determining Fixtures in Property Transactions

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Answer to Question Number One

Dear Fatima, Asif, And Waqar

Subject- Meaning and significance of joint tenancy and tenancy in common and Process of achieving transfer of their respective property shares to their children

Joint tenancy

The term joint tenancy is defined as the legal arrangement where two or more two persons own the piece of the property together, each having equal obligations and equal rights. These joint tenancies could be created by either married couples or non-married couples. They also can be created by relatives, business associates, and friends. This term joint tenancy helps in creating a legal A relationship where this is considered as a right of living if any of the owners dies. Here the interest in the property is directly transferred to the party who is surviving one and without going through the court system or probation. This is the agreement that helps in creating such a right that is referred to as the right of survivorship. The term joint tenancy means that when one part of the contract regarding the ownership of the property dies, then the other party would simply assume full ownership of the property. Thus, this legal relationship would simply make eliminate the need for probation or a need of transferring the asset of the person who has died to the estate.

There are various advantages of the joint tenancy are

Automatic rights of the survivorships,
All the tenants must obtain an equal share of the property with the same documents that are also known as a deed at the same time.
The agreement under joint tenancy gets broken if any of the owners are willing to sell their share of the property or the interest vested in the property.

Tenancy in common

The term tenancy in common is quite different from the term joint tenancy. The term tenancy in common is the condition where all the owners of a property shall have an equal right to the whole property, but each of the owners owns a specified proportion of the property. Suppose, for example, if Mr A and Mr B own a land L, where A is having 60 per cent interest vested in that property while B is having 40 per cent interest vested in that property. In the same case, whenever either A or B dies, in the agreement that relates with the tenancy in common, then the property would not automatically transfer to another joint owner.

Instead, it shall pass according to the will of the deceased party, and whenever there is no will present, then it shall be distributed according to the intestacy laws. Thus, if the owners are having an intention of distributing the parts or the share of their property to the children or their legal heirs, then they must choose tenancy in common instead of joint tenancy. This agreement which has been specified under tenancy in common, would give the parties into the agreement an assurance that their property shall be passed on to the legal heirs or the person that are chosen and not to the other owners. There are various advantages of the agreement made under tenancy in common are-

It facilitates the purchasing of the property,
There is the possibility of changing the numbers of the tenants,
There is also a possibility of various degrees of ownership of a single property.
If any of the owners of the property changes, the agreement does not get broken.
There are no automatic rights of survivorship to the owners under the agreement of tenancy in common.
The sale of the property is possible by any of the owners of the property.

Process of achieving transfer of their respective property shares to their children

So here, Fatima, Asif, And Waqar would choose the agreement to be formed under tenancy in common so that their property could be transferred to their legal heirs or their children according to their will.

The tenancy in common is the agreement where Fatima, Asif, And Waqar would own the property in any proportion. The agreement of tenancy in common might be possibly created at any time. So, when Fatima, Asif, And Waqar would develop the interest in the property, they would have an independent option either to sell or to borrow against their share of the property.

The tenancy in common is an agreement that is guided by the prescribed law, and thus it would usually outline the implications of the taxes in the property based on the share of the ownership. The agreement under tenancy in common will outline how the liability of the tax is distributed contractually to each owner under the agreement. As the agreement under tenancy in common is not responsible for any legal division of the property and thus, the taxation authorities do not divide the property tax among the owners of the property. It is usually anyone owners of the property receive the bill of the property tax, which is usually considered as the tenants in common. Also, the tenancy in common is an agreement that would impose the joint and several liabilities on the co-tenants. This statement simply meant that each of the owners of the property should be individually liable for the tax of the property.

Yours sincerely,

A solicitor

Answer to Question Number Two (A)

Dear Asif,

Subject- Validity of the contract

In the given scenario, the validity of the contract between Asif and Mark is based on the acceptance of the offer and the consideration that is written on the documents. Therefore, as prescribed in law, some steps must be followed by both the parties at the time of signing the contract, which is specified as below are-

The parties to the contract must make sure that they would be signing on the same contract in which the agreed terms, as well as the conditions, are specified.
The parties to the contract must be dated so that it would be valid as well as enforceable so that it will be easier to identify the legal terms in chronological order.
Another condition, which is highly mandatory that both the parties to the contract must sign the contract. If any of the parties to the contract does not sign the documents, then it would not be legally binding to both parties.
The parties to the contract must ensure that all the last-minute changes made to the contract must be initialled by each of the parties to the contract. This will help in avoiding any kind of misunderstanding.

The parties are liable to sign the contract according to the accurate capacity because signing correctly would help the other party to understand the contractual obligations that depend upon the contractual capacity.
One of the parties to the contract must make sure that the other party to the contract has the contractual authority to sign the contract. It must not be signed by someone who was not legally authorized to do the same. Therefore, after signing the approval is also mandatory.
It is the right of each of the parties to a contract that he or she must get a signed copy of the original documents. Thus, if there are two parties to the contract that is Asif and Mark, then two identical contracts should be there and must be signed by both parties for an appropriate validation of the contract.

Therefore, in the given case, it is concluded that the contract of sale between Asif and Mark is not valid. First of all, one of the parties to the contract is Mark had not signed the same contract in which the agreed terms, as well as the conditions, are specified, rather he has signed the plan documents, and thus he violated one of the terms regarding the signing of the contract. Secondly, it is very much mandatory that both the parties to the contract must sign the contract.

If any of the parties to the contract does not sign the documents, then it would not be legally binding to both parties. And in the given case, Mark has not signed the documents that were signed and sent by Asif to him. Therefore, this also raises a question of the validity of the contract. And lastly, there are no identical original copies of the document related to the contract of sale are given to both the parties, as it is also very important that when there are two parties to a contract, then two identical contracts should be there and must be signed by both the parties for an appropriate validation of the contract. Therefore, this is concluded that there is no valid contract between Asif and Mark.

Yours sincerely,

A solicitor

Answer To Question Number Two(B)

Dear Waqar

Subject- Whether the greenhouses and the antique furniture should be a part of the property.

According to the property law, the term degree of annexation test has defined the condition when an article is a fixture and if that article is attached either to the building or the land in such a substantial manner, like by screws or by nails. And the more irreversibly or might be more firmly the articles are attached to the building or the land, there is a high possibility of classifying the same as a fixture.

In more simple words, there should be a connection that is physical with the land or any part of the land. And in the case where there is no attachment, then that is assumed as a chattel. And when the object can be easily removed without causing any damages to the property, or any damages to reality, then that is not considered as a fixture. According to the test of the degree of annexation, it is a general rule that the chattel is not considered as a fixture until and unless that is connected to the land or building. Simply lying in the article does not classify it as a fixture. Because under the annexation test of the object, it helps in ascertaining that whether the chattel has been fixed for its usage or the convenient usage of the property.

When damages are caused to chattel in the case of the removal-

Under such circumstances, the removal of the article would cause damage, and thus, the obvious intention would be no removal of the article from the site, and therefore, it would also be intended to permanently keep on the same site. And in this case, this would classify as the fixture.

Therefore, in the given case scenario, it is concluded that the removal of the greenhouses and also the antiques have caused no damage to the property or the cottage. It is also assumed here that there was no written clause regarding the sale of two beautiful greenhouses that were resting on the concrete bases in the garden area of the property, and also regarding all the antique furniture that was inside the cottage or the boundaries of the property. As the seller has removed two beautiful greenhouses that were resting on the concrete bases in the garden area of the property, and also regarding all the antique furniture that was inside the cottage or the boundaries of the property before leaving the property, and this have caused no damage or destruction to the property of Waqar that is greenfield cottage. And in this case, this would not classify as the fixture. And therefore, it is also concluded that both the greenhouses and the antique articles were not fixed for the usage of the cottage or the convenient usage of the property. Thus it could be removed by the seller. Thus, it is hereby observed in the case scenario that the degree of the annexation was not material, and therefore, it is concluded that the greenhouses and the antique furniture should not be a part of the property and Waqar could not make any claim regarding the same.

Yours sincerely,

A solicitor

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