According to the Transfer of Property Act every joint or co-owner has a proprietary right of the entire property. Hence, any sale has to be done with the consent of all co-owners involved. If, however there are specific conditions in the agreement that gives co-owners exclusive rights to certain parts/portions of the property, a co-owner can sell his portion to whom he chooses.

Sanjay and Mughda were a happily married couple before some unfortunate circumstances forced them to separate. They co-owned a house and Sanjay insisting on dividing all the things between the two, got hold of a lawyer to handle his claim. The lawyer, after feeding some legal mumbo jumbo to her, convinced Mughda that she did not have a stake in the house. Little did she know that she had equal rights to the house! All this, because of Mughda’s ignorance about the rights of a co-owner.

Who is the co-owner of a property?

Co-ownership or Joint ownership simply put is when two or more persons hold title to the same property.

What are the types of co-ownership?

Tenants in Common — When two or more people buy a property but do not specifically mention the share that each has in the property, a ‘tenancy-in-common’ is said to exist. All the co-owners can use the entire property and every co-owner is deemed to be having an equal share in the property. Upon death of one of the co-owners, the interest in the house does not pass to the other co-owners but to the person named in the will of the deceased, who will then become a tenant-in-common with the surviving co-owners.

Joint tenancy
— Joint tenancy is a form of co-ownership where property is owned by two or more persons at the same time in equal shares. This type of tenancy provides rights to ownership of the property for the co-owners who outlive other co-owners. Unlike tenants-in-common, when one joint tenant dies, his/her interest automatically passes on to the surviving joint tenant(s). There are four legal requirements necessary in order to create a joint tenancy:

  • Unity of time
  • Unity of possession
  • Unity of title

This legal requirement simply means that the co-owners need to take the same title at the same time, same deed and with equal interests.

Tenancy by entirety — This is a special form of joint tenancy when the joint tenants are namely the husband and wife — with each owning one-half. Neither spouse can sell the property without the consent of the other. In this type of tenancy also, the share of ownership of one co-owner automatically passes on to the co-owner who outlives the other. Apart from the four aspects mentioned in joint tenancy – Unity of time, possession and title, another aspect is also key here. This last aspect is the unity of marriage, which can be terminated only by divorce, death or mutual agreement of both the spouses. However, such a termination will result in the type of ownership to be converted to “Tenancy in common”, explained above.

In the event of such an occurrence, it is important to brush up the laws involving transfer of property to be clear about one’s rights.

What are laws related to transfer of property by a co-owner?

Section 44 of the Transfer of Property Act 1882 deals with transfer by a co-owner and it also deals with the rights of a transferee in this type of a transaction.

According to the Transfer of Property Act every joint or co-owner has a proprietary right of the entire property. Hence, any sale has to be done with the consent of all co-owners involved. If, however there are specific conditions in the agreement that gives co-owners exclusive rights to certain parts/portions of the property, a co-owner can sell his portion to whom he chooses. However, a currently dwelling house is an exception to this rule, where consent has to be sought from both co-owners who jointly own the house.

What are the rights of a co-owner?

A co-owner is entitled to three essentials of ownership:

  • Right to possession
  • Right to use
  • Right to dispose off his share of the property if it is clearly stated, in the deed.

Therefore, if a co-owner is deprived of his property, he has a right to be put back in possession. For example, in Mughda’s case, she can rightfully claim her share in he property.

Why is co-ownership better?

If you are a married couple, co-owning a house it with your spouse has many benefits. Both can get tax benefits. In case of a joint ownership, the husband as well as the wife individually will be able to claim deductions under Section 24 of the Income Tax Act, for up to Rs. 1, 50,000 for interest. You can claim tax benefits for your principal amount under Section 80 C for a maximum Rs. 100,000. It also enables you to bargain for a bigger loan amount by clubbing your spouse’s income. It also enables easy transfer of property to your children.

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  1. We jointly own a flat at Mumbai, my wife is first applicant and me Co-applicant, Initially the flat was purchased only with the intention that in due course it will be transferred in the name of my elder brother who is working, staying at Mumbai right from the begining in the same flat.My brother's income and all stands well eligible to draw the loan to the extend our Loan outstanding is
    We are ready to register the property in the name of my brother by paying stamp duty on what-ever the CIDCO's minimum registration value indicates for.
    Despite all this now HDFC says we normally do not allow such cases in blood relation aving fear of wrong fund generation, where as the case is not exactly.
    Neither there is blood relation between my wife and my elder brother nor the case is we are asking for any funds excess of loan outstanding.
    Its simply a case of Property transfer.
    It will be great if you can put some light on how to put forward with HDFC or any other Financial institute / Bank or to broaden their knowledge to take in right perspective.

    Vinay Amin / Reply
  2. does a transfer of flat frm husband to wife without any money transaction, requires any registration and stamp duty to be paid?? please advice.

    Teddy fernandes / Reply
  3. I was Joint owner of my flat reseding at Thane after my father's death I apply for transfer of share ceertificate to my name on 09.04.2008 and said flat transfer on my name with first nominee of my Mother and Second Nominee my wife

    there is any proceesior to transfer the said property to name of my Wife name what is the proceesior.
    and also can you explain me if any requirment of NOC from my Mother .
    Thanks
    Regards
    Anant S.kar.

    Anant S Pawaskar / Reply
  4. I own a house jointly with my wife. aftr retirement i added first floor in the house. the first floor has been rented out to a company executive. i would like to know :
    can my wife my wife legally include the rental income from the house in her income for the purpose of filing income tax return?

    P B Kulshrestha / Reply
    • Yes she can, even if you live in the ground floor, the top floor which you have given out for rent will had a different address ( 1st floor.) Also, since you will not be claiming rental income, she can do so. This type of income generally falls under "Income from other heads" . It cannot be included as part of her regular income. Further she will need to pay tax for the income generated under "Income from other heads".

  5. i have purchased a buildig with my friend, in the sale deed ,the portion of the building for each person is not specified, now he is saying he going to sell his share , is it possible to sell his share with my consent and is there any any possiblility to stop the sell his share?

    dkk / Reply
  6. my brother is the executive of my mothers Will that left both of us jointly owner of the house. Can my brother sell my half of the house as executive without my permission to any fly by night person?

    Lynn Fowler / Reply
  7. My sister and her husband co-own a flat in Ghaziabad, NCR, Delhi. This flat was purchased at 28.5 lacs with overall value of around 32 lacs. Its current value is somewhere around 37 lacs. Property is on loan of 20 lacs from hdfc bank.
    Due to some problems in the marital life, it has been decided that husband would transfer his ownership and all rights to wife, so that as and when required the wife is in the position to sell the flat all alone, without taking any consent from her husband. However the husband would continue to pay the emi's till any such situation arrives.
    Currently the parents of both the sides are effortful to save the marriage and have told the couple to stay together under the same roof though separately in different rooms, on the condition of giving some time to husband to improve.
    Husband has no objection signing any papers related to this. The couple is married for almost 8 years and have a girl child of about 6 years. Request all there to guide us that under such situation what kind of papers can be signed to transfer all property rights to the wife and what would be the approximate expenses? The property is ghaziabad, UP. And the original property papers are with the bank.

    Nitin / Reply
  8. I own a flat in my name i want to my wife's name what is the procedure.

    sunil / Reply
  9. My fiance and his sister co-own a house. He wants to buy her out. She insists she wants a real estate agent to handle the paperwork so that it's done properly. also she wants him to do the same so that his interests are represented. Isn't this 'paperwork' done in Escrow?

    Laura Freas / Reply
  10. My father purchased a plot of land in the name of my mother & constructed a house thereon. Thereafter my father died. We are three brothers. Before her death my mother executed a gift deed in the name of her youngest son conveying her right, title & interest of the whole property. She stated in the said deed that as business of her husband was taken over by her 2 sons and her husband also gave money to the said 2 sons for buying their present flat, she thought it fit to gift the only property i.e. the building to her youngest son. Would anyone kindly opine whether the 3 sons are entitled to the said property in equal share like 1/3rd each after the death of their mother.

    S Roy / Reply
  11. I am a Co-Owner In Co-owner building and if other Co-Owner Sell His Flat and not his rights in building than he is still a Co-Owner or he his no rights on the building and what will be the status of flat buyer

    Mahendra / Reply

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