InkElites LMS

JOINT TENANCY & TENANCY IN COMMON

LAND LAW (PROPERTY LAW) | Page 8 of 22
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feudal origins that fashioned the rule of jus accrescendi in English law has no place in customary law. Circumventing Rule of Survivorship The lawyer‟s concern is how to get round the effect of jus accrescendi and have come up with recognise ways in which a joint owner can disable the application of this rule of survivorship. This is to take specific steps to do so when he is still alive. The following ways could be helpful: 1. Prepare a deed of severance/partition: one way a joint owner can ensure that his heirs are not disadvantaged by the rule of survivorship is to urge the other co-owner to partition the property and execute a deed to evidence it. In Giwa v. Otun (1932) 11 NLR 160, Butler Lloyd J observed: “So little is joint tenancy favoured in English law that any single joint tenant, tenant in common or co-parcener can enforce partition against a majority of co-owners. In such cases, the court has not even a discretion… it is only when a sale is sought that the court has a discretion and even in that case a sale will be ordered if asked for by parties interested in a moiety or more of the property unless the court sees good reason to the contrary. In other cases the court will decide whether a sale is more beneficial than a partition having regard to pecuniary results rather than sentimental consideration.” 2. If co-owners disagree on partition, one co-owner can apply to court for an order either for partition or a sale of the property. The Partition Act of 1868 empowers a judge to partition the property upon the application to the court by any joint owner seeking an order of partition. 3. Where by the nature of the property in question, it is impossible to partition without some difficulties, (for example, where a man has 13 children and left a