Joint ownership of property
Types of co-ownership
The contract written at the time of the purchase defines the nature of the ownership. There are two forms of ownership recognised in Jersey law; joint ownership and ownership in common. Unless there is express wording in the contract stating that there is to be joint ownership, then the presumption in Jersey law is that co-ownership is by ownership in common.
Differences in terms of co-ownership
The most important difference between types of co-ownership is what happens on the death of one of the owners.
Most married couples buy property as joint owners. On the death of a joint owner, their interest in the property passes to the surviving joint owner.
A joint owner cannot transfer ownership of their share of the property to someone else without the agreement and participation of the other owner.
One joint owner cannot mortgage their interest in the property separately for the other owner.
Owners in common
On the death of one owner in common, their interest in the property passes on to their heirs.
Where property is inherited by several parties, e.g. members of a family, ownership is by ownership in common. One or more may wish to sell the property to release its value. If not all are in agreement, the sale can be forced.
Ownership in common may not be simultaneous in some circumstances. For example, each of three owners may have enjoyment of their land for one year in three.
An owner in common can transfer the ownership of their share in a property at any time without the need of the agreement of the other owners in common. If an owner in common wanted to transfer their interest to more than one person, they should seek legal advice, as this would result in the total number of ‘shares’ in the property being increased. This may not be permissible.
Wills and inheritance
The provisions in a will cannot override the rights and duties of co-owners as recognised in common law.
Forced sale: licitation
Under Jersey law, no-one is obliged to remain in a property co-ownership if they wish to withdraw. A co-owner, whether joint or in common, can compel the other co-owners to join them in bringing the co-ownership to an end. If the other co-owners do not agree, the Court can be asked to order the property be sold by auction and the proceeds divided. This is known as the common law of an action en licitation.
If an order is granted by the Court and the co-owners still do not agree to co-operate with the sale, the Deputy Viscount will be authorised to act on behalf of the unwilling owner to bring about the sale.
The fact that the sale must be by auction enables any co-owner to bid and so raise the price or purchase the property outright for themselves.
Forced sale during divorce proceedings
The threat of a forced sale of the marital home could prejudice the negotiations during divorce proceedings. For this reason, the Family Division of the Royal Court may order a forced sale to be delayed or suspended for a period specified by the Court to allow for matters involving the sale of the property to be discussed without such pressure.
Alterations to property
Co-owners cannot alter property owned in common except with the agreement of all of them. Should an alteration be made against a co-owner’s wishes, legal advice should be recommended to seek reinstatement or compensation.