• Tenancy by entirety or Tenancy in Common or joint tenancy?

My parents bought a property and both of their names were indicated in the deed as buyers (no specific clause indicating percentage share of each is mentioned in the deed). Although there is no such mention as joint ownership in the deed that they jointly own this property but all the 5 unity conditions of "Tenancy in entirety" (time, Marriage, interest, title & possession) hold at the time of the deed registration. In this case, when there is no such specific mention in the deed, would it be assumed to be a 'Tenancy by entirety' or would it be a 'Tenancy in common'(TiC)? 

It is relevant to understand this because now my father has died intestate (Mother still survives) and my other brother is claiming rights on the property assuming that atleast he can claim his right on the father's share of the property (assuming 50% share for father and the other 50% for mother since both names are there in the deed).

If this is 'tenancy by entirety' then does it mean my mother is the owner of 100% of the property after the death of my father. If yes, what do I need to do to get the property registered/mutated only to my mother's name so that the brother gets this message loud and clear that mother is the owner of 100% and it can be used as per her wishes only? Or I don't have to get any mutation/registration done because as per Tenancy in entirety rule the ownership gets 'automatically transferred' to the survivor and she can sell it to anyone without the consent of any of the children? (Mother wants to sell the property and the other brother is resisting the sale and is not expected to co-operate or sign the deed as consent giver if and when mother proceeds to sell it)

And if the assumed tenancy in this case (since the 'joint ownership' related wordings/clause is not present in the deed) is 'Tenancy in Common' then another issue is that the brother who was using the part of the property to do business has rented part of the property (A shop) to another person and without the mother's consent and is collecting the rent by himself and refusing to give it to the mother. 

Now let us assume for a while that he is a co-owner (let us say of 1/3 of 50% of the whole) can he rent it out to others without my mother's consent and even if he has a rent agreement done with the tenant would it be legally valid if my mother and I have not signed it? (We want to evict that tenant /wrongful occupant or force him to pay the rent to my mother instead of to the brother). How can we do that? What can we do about the rent my brother has already collected for the last 5 months? (We spoke to the wrongful occupant and he is not ready to vacate or give rent to the mother because my brother has advised him against it)

Also, Please guide what can be done for a property which was solely in my father's name but it is not a registered property, it is notarized. Can brother claim rights there as well or can we transfer it to my mother's name without his consent?
Asked 4 years ago in Property Law
Religion: Hindu

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4 Answers

Since no specific share is mentioned in sale deed both would have equal share in property 

 

by default joint purchasers would be tenants in common 

 

3) on father demise his 50 per cent share in property would devolve on your mother , you and your siblings 

 

4) for transfer of flat in mother name only you and your siblings have to execute gift deed for your share in property 

 

5) brother could not have rented the property without mother consent 

 

6) mother can issue legal notice to your brother and tenant and ask tenant to vacate the property 

 

7) you need registered sale deed to confer clear and marketable title to property 

 

8) notarised sale deed would not suffice

Ajay Sethi
Advocate, Mumbai
97387 Answers
7868 Consultations

The property is under joint ownership hence upon the intestate death of your father,  his share of property shall devolve equally on all his own legal heirs consisting you,  your siblings and your mother. 

Therefore your brother has a right to claim his legitimate share proportionately in the property out of your father's share in the property. 

However he cannot rent out any portion of property on his own without involving other shareholders especially before partitioning the property. 

You being one among the shareholders,  can issue a legal notice to the tenant asking him to vacate since the rental agreement entered into between him and your brother is legally not valid as the other shareholders have not consented or agreed to this rental agreement. 

You can discuss with an advocate and proceed as suggested. 

T Kalaiselvan
Advocate, Vellore
87589 Answers
2351 Consultations

Yours is “tenancy by entirety,” or joint tenancy. Such tenancy arises between husband and wife when a single instrument conveys the property to both of them but nothing is said in the deed about the character of their ownership. Upon the death of either husband or wife the survivor automatically acquires the title to the share of the deceased spouse. Brother cannot claim any share in the property unless mother agrees as now mother has acquired right over the share of deceased  father and she can transfer the whole to anyone. You can get the name of father deleted from the records by way of mutation. That will consolidate her right and deal with tenant. Property with is notarized in name of father acquires character of ancestral property in which  all legal heirs have claim. For property in possession on basis of un-registered, there is way out to get registered.

Ravi Shinde
Advocate, Hyderabad
4344 Answers
42 Consultations

Dear Sir/Ma'am,

 

As per the laws of survivorship, upon the death of your father, your mother becomes the sole owner of the property. Your brother cannot claim his share unless your mother approves so or unless the partition deed has been executed. 

Even if he is a co-owner, he cannot let out the property for rent without the consent of other owners and you may issue a legal notice to the tenant asking him to vacate. 

Anik Miu
Advocate, Bangalore
10335 Answers
121 Consultations

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