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