Sunday 18th November, 2007

 

No ownership without title

 
 
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When I visited Dubai, the name nakheel was big on the flag poles and billboards. They are a property development business, building houses, malls, hotels and palm islands—in fact, the word nakheel is Arabic for palms.

In the real estate business, there are various lucrative sub-sectors, such as valuators, property management, marketing, brokerage firms. On the other side of the coin are the consumers, who want to buy property to invest.

This is where understanding the concept of “title” becomes critical. Essentially, your title is your evidence of ownership. This is commonly found in a document called a deed. The deed bestows ownership rights.

The deed can be a source of many headaches for those appointed to execute wills and for owners wishing to sell property.

When you purchase a property, the transaction is usually completed in a lawyer’s office. The purchaser will have the opportunity to instruct the lawyer about how to word the deed to bestow ownership. The deed can reflect the ownership interests in many ways.

It is common practice to purchase property jointly with another person such as a spouse, child or business partner. This is called concurrent ownership.

The two common survivorship clauses are:

n tenancy in common; and

n with right of survivorship.

The succession of property to heirs, when the property is owned in either of the ways listed above, is not controlled by the provisions of a valid will. The deed allows the property to pass outside of the will, and is a document superior to the will in terms of legality.

For example, if a will seeks to pass property to an individual, such as a child, when the deed for such a property is titled as “tenancy in common” with a named individual who is still alive, then the provision in the will cannot be adhered to, and is void, but that does not void the will.

Executor’s right

With respect to the interest referred to as “tenancy in common,” there may be two, or more people named as common tenants. Each person so named has an absolute right to a portion of the property, and any party can divest—sell or will his portion to another person.

With respect to joint tenancies with right of survivorship, the death of one tenant allows the property to pass in fee simple absolute (see later) to the survivor. Or, during the lifetime of both joint tenants, can only be sold with the consent of all of them.

If the deed does not name a tenant in common or a survivorship, only then does the property pass into the estate of the deceased, and only then can the provision in the will be honoured.

Complete interest in property refers to total ownership by one person or entity. The language in the deed looks like this: Estate in fee simple absolute, or fee simple estate. This simply means that the ownership is infinite in time, and the owner has the right to give it during his lifetime as a gift, or sell it, or will it.

If several heirs are named in the will for any one property, and there is no direction in the will as to whether the heirs should be tenants in common or joint tenants with right of survivorship, then the executor has the right to decide how to title the new deed.

Reference should then be made to the last conversations with the deceased, for guidance on how to proceed. Fiduciary responsibility is never blowing in the wind!