The position In law offers two forms of joint tenancy. The fist one is joint in nature and the second position offers a common type of tenancy. The tenancy which is joint in nature is a scenario where we have a group of people who take shares in a property and have a deed which reads as a joint tenancy. When any of the partners die the property interest shifts to the surviving co-owners . In this case the ownership does not pass by a will but by law. The other arrangement is where we have a common tenancy system.
In the second scenario, shares of the partners need not be equal and a co-owner in this arrangement has a discretion to pass the interest they have in the property by way of a will . The effect here is that the surviving co-owners end up sharing the property with someone else. The assets owned by the deceased in a sole manner or in a common tenancy with others continue being the deceased property and the administration in the will must be effected in transfer or sale of such a property.
The procedure that should first be observed is that, the property in question must be shifted to of those who are empowered to be the owners of the left property. . Those given the authority to deal with the estate should where necessary approach the court requesting for administration letters or for grant of probate . The next thing for the administrator or executor to do would be the passing of the property to the beneficiaries or to the beneficiary who is stated in the will.
In our case scenario, the three sisters owned the Berry bank cottage in a joint tenancy relationship which meant that, if any of the partners die, the ownership of the estate is moved to the surviving co-owners . When Anna died in the year 1952 as the first of the co-owners to die, her property interest moved to the partners who were still alive, Beth and Carrie. The interest here does not pass by way of a will but by the law. The will written by Anna appointing her sons Arthur and Alan is therefore null and void in law since the writer of the will lost the interest in the property upon death to the surviving co-owners.
Beth died as the second co-owner of the property meaning that of the three joint owners, it is only Carrie who was left surviving. Beth left her cousin as the trustee and executor of the whole of her estate and indicated in her will that, her two children would be the beneficiaries of the entire estate. This will is still not effective since upon the death of Beth who held property in joint tenancy with Carrie, she lost the interest in the estate to the surviving co-owner who is Carrie.
Carrie was the last to die among the three who once held the property in a joint tenancy ownership. She appointed her husband and son as trustees and executors to hold the property in trust for the United Kingdom vegetarian society. Carrie being the last of the three was left as the sole owner of the property and hence she did not lose interest in the property upon her death but rather, what she had written in the will needed to be effected while dealing with the administration of the estate.
From the point of law therefore, the property is not valid for sale because the will of Carrie who was the last of the joint tenants to die had stated that her husband and son hold the property as trustees and executor in trust of the United Kingdom vegetarian society . If the property was however held as a common tenancy, it would have been valid for sale by the beneficiaries appointed by the deceased in the subsequent wills. The signing of the sale should have been effected by one of the executors or administrators appointed in the will.
It is advisable that the legal process in the administration of the estate be followed and in this specific case the sale of the property. The executor or administrator of the estate must first notify all the interested parties with the inclusion of the beneficiaries about those who are named in the will as the beneficiaries. The administrator or executor should also where necessary obtain a grant of probate to administer the estate, he should then follow the rule in the trustee Act of advertising for creditors who may be involved in the estate .
The returns on the income tax should also be finalized so that all the amount of tax up to the date when the deceased left is completed. The administrator is at this point empowered to dispose off the property and the proceeds should be distributed to the beneficiaries according to the shares accorded in the will . In our case case therefore if the cousins were to succeed in their mission of selling the house, it means that the amount would have been distributed in accordance with the discretion granted in the will.
The second case scenario touches on the issue of easements and rights of passage and access to the property of another person. An easement in definition means the freedom or right that is given to a third party to do something in the property of another person, it can also mean the right inform someone to stop doing certain things in a real property of somebody else . An easement is treated in common law as a complete property right in itself and is up to date recognized in many jurisdictions.
Equitable servitude is the another name used to refer to an easement. Mr O’Kelly obtained an easement which is a right given to a third party to use the land another for a specific purpose. An easement differs from a lease because it does not enable someone to have the rights to possession on property which is the case in a lease. The easement allows a person the right of use only. A lease is also different from a license because the license gives limited privileges to the holder, to do a specified act on the land of another for a restricted duration.
The provisions of a license are therefore more limited than the rights in an easement arrangement. A license in nature can be brought to the end by the land owner with ease but with easements this cannot happen. . The nature of easements benefit and are attached to a different parcel on the land, and not just to a restricted person. The meaning of this is that if a person had rights of easements over a specified land, he still continuous to enjoy the same privileges of the easement even after the property is transferred to another another person .
Where we have gross easements, it is only the specified people who enjoy the easement. Easements can be created in several ways which include express creation that entails the writing of an easement agreement in a deed, a contract or in a will. Express form of easement takes place when a landowner makes small portions on his land and dispossess off a smaller piece of the land to someone else.
If for example a property owner sells out a small piece of land that has a sewerage pipe on it, and the seller retains the right to access the buyers land so as to use the sewerage, then the easement is implied. This document though it had not been produced before the registry of land to the society of building, it still remains valid for this purpose . The law provides that an easement can be nullified if the period which had been stated by the parties in the contract expires, or if some incidences take place when an easement is already in operation.
The incidences that can bring an easement the end include; where a person subsequently owns a servient estate as well as being the dominant during the existence of an easement which is appurtenant, if one who was holding an easement in gross subsequently becomes the owner of the whole estate, if the person who holds the lease by way of having it written in a deed decides to release the particular deed in favor of the tenement servient owner and lastly in the instance that a person decides to abandon an easement arrangement .
It is by following the above procedure of obtaining an easement as well as considering factors which lead to the ending of a lease agreement that the case of Mr and Mrs Benjamin can be decided. Mr O’Kelly retains the right of easement which he signed in the deed even after the transfer of the property passes to a another person who in this case is likely to be Mr and Mrs Benjamin.
Unless Mr O’Kelly decides to abandon the lease agreement, or decides to release the particular deed in favor of Mr and Mrs Benjamin, or unless any of the incidences stated above occurs so as to bring the easement to an end, Mr and Mrs Benjamin will not have the right to prevent Mr O’Kelly from enjoying any privileges agreed and signed upon in the easement arrangement.