Buying Property with Another Person: Joint Tenancy vs Tenancy in Common in Kenya

Buying a property with another person creates two decisions at once. The buyers must decide what to acquire and how they will own it together. The second decision is often treated as a box to tick on a transfer form, yet it can determine what happens if one buyer dies, wants to sell, contributes more money, stops paying a loan or leaves the relationship. Kenyan land law recognises two main forms of co-tenancy: joint tenancy and tenancy in common. The choice should reflect the result the buyers actually want, not merely the relationship they have when they sign.

The Land Registration Act requires the instrument and registration to show whether co-proprietors hold as joint tenants or tenants in common and, for tenancy in common, the share held by each person. That is a reason to have the discussion before the transfer is prepared. A private understanding about contributions may be important, but it should not be allowed to contradict an ownership structure recorded on the register without the parties understanding the consequences.

Joint tenancy keeps the interest together

Joint tenants hold one undivided interest together. No joint tenant owns a physically separate piece of the property that can be pointed out as their half. The feature most people notice is survivorship: when one joint tenant dies, that person’s interest passes to the surviving joint tenant or tenants. It does not ordinarily become part of the deceased’s estate in the same way as a tenant in common’s share.

That result can be suitable where co-buyers intend the survivor to continue owning the property without a separate succession step for the deceased person’s interest. It can be unsuitable where a buyer expects a defined portion of the investment to pass to children or another beneficiary. Survivorship should therefore be a deliberate choice. It should not be assumed from a shared mortgage, a marriage, a family relationship or an equal deposit.

Joint ownership also affects dealings with the property. A sale, charge or other disposition requires the proper participation and authority of the joint proprietors. A buyer cannot treat their personal contribution as a separate registered asset simply because they paid more of the purchase price. Where the co-buyers’ plans differ, the risk is best addressed before completion through the registered structure and a clear agreement about finance, occupation and exit.

Tenancy in common records separate undivided shares

Tenants in common each own an undivided share in the whole property. The share may be equal or unequal, but it is not automatically a particular bedroom, floor, field or side of a parcel. On death, the share forms part of that owner’s estate rather than passing by survivorship to the other co-owner. This can suit buyers who want their respective interests to be capable of succession according to their own estate planning.

The transfer should state the shares accurately. A buyer who contributed a larger deposit may assume they own a larger share, while the instrument records equal interests. A later disagreement then becomes harder because the parties’ financial history and the register tell different stories. Before signing, co-buyers should decide whether their shares are equal, whether a loan is joint or separate, and whether an unequal contribution is a gift, a loan or a basis for a different registered share.

A tenant in common may later wish to transfer or realise their share. That does not mean the incoming owner receives a physically separate plot. The new person takes an undivided interest alongside the other co-owner, subject to the title, finance and practical constraints. If the ultimate aim is separate parcels, the parties need to investigate partition, subdivision or another legally workable arrangement rather than describing an undivided share as a completed subdivision.

Put the commercial arrangement in writing

The register records the legal ownership, but it does not necessarily record every agreement between co-buyers. A co-ownership agreement can address who pays the deposit, instalments, rates, insurance, repairs and improvements; whether one person occupies the property; how rental income is shared; what happens if further funds are required; and how a buy-out or sale will be valued. The agreement should be consistent with the transfer and any finance documents.

This is particularly useful where a lender is involved. A lender may require both registered owners to assume liability or may impose restrictions on a transfer. A private agreement cannot release a borrower from the lender’s rights. The co-buyers should understand the difference between their arrangement with each other and the obligations created by the charge before they agree a repayment or exit plan.

Plan for a change before it becomes a dispute

Co-ownership arrangements are often tested by events rather than by the purchase itself: a death, separation, insolvency, a new partner, a missed repayment or a decision to relocate. The Land Registration Act provides a mechanism for joint tenants who are not trustees to signify an agreement to sever joint ownership, with severance completed by registration. A change should not be assumed from an informal email, a will or a change in who occupies the property. The required documents, consents and financing consequences should be considered first.

Before buying together, ask the question that is easiest to avoid: if one of us wants out, dies or cannot pay, what should happen? The answer may be survivorship, a succession share, a right for the remaining buyer to purchase the other’s interest, a sale, or a different arrangement. Recording that answer early gives the property transaction a structure that can survive a change in circumstances.

Primary sources: Land Registration Act, 2012, sections 91–93.