Can Land Be Jointly Owned by Husband and Wife?
The Land Registration Act laws in Kenya provide that there can exist co-ownership and other relationships between spouses in terms of land and, similarly, marital property rights and responsibilities.
Elizabeth Mwanzia
Under the Land Registration Act Cap.300 Section 93, subsection (b) joint land ownership subject to the matrimonial property if a spouse obtains land for the co-ownership ad use of both spouses or all the spouses, the registrar shall register the spouses as joint tenants.
Similarly, the Matrimonial Property Act No. 49 of 2013, subject to section 6(3), provides that each spouse legally earns ownership of matrimonial property according to either spouse's contribution towards its acquisition. Therefore, it shall be divided between the spouses if they divorce or their marriage is otherwise divorced.
Over the years, Kenya’s Matrimonial property laws have been ambiguous and lacking in clarity. In these years, the matrimonial property has been a case of too many disputes. The ambiguity of law had contributed to the various institutional barriers to justice and claiming matrimonial property, especially among women who had undergone a divorced or had been widowed. However, the matrimonial property law shed some light on spouses' rights and responsibilities concerning the matrimonial property.
Therefore, when it comes to joint land ownership, according to the Land Registration Act and subject to the Matrimonial Property Act, a presumption shall be held that the spouses shall have the land as joint tenants unless in the situations mentioned below.
Firstly, a provision in the ownership certificate or the customary ownership clearly states that one spouse is taking the land in his or her name or that the spouses are taking the land as joint tenants.
Secondly, that the presumption is rebutted in the manner stated in the above provision.
Additionally, the laws under the joint ownership of land by a husband and the wife provide that in cases where the land is in the name of one spouse, the other spouse proves beyond doubt contribution through upkeep, labor, improvement of the land other means of productivity. That spouse shall be deemed by virtue of the labor provided to have acquired an interest in that land in the nature of the ownership and shall gain rights by contribution to the land, and the rights shall be recognized in all cases as if they were registered.
The Land Registration Act also further protects either spouse under co-ownership of land. In cases where one of the spouses who hold land or a dwelling house in his or her name individually undertakes disposition of the property, the lender, the assignee or transferee to whom the disposition is charged, assigned, or transferred to respectively should take upon the duty to inquire of the borrower, assignor or transferor whether their spouse has consented to that charge, assignment or transfer.
If, in this case, the spouse disposing of the land or dwelling house misleads the lender, assignee, or transferee by answers to the inquiries under the Land Registration Act Cap. 300 section 93 subsection 3(a) and 3(b), then the disposition is legally recognized as void at the option of the spouse who did not consent to the disposition.
Joint ownership of property such as land in Kenya is gaining momentum among couples. Here are some of the reasons why. The law of survivorship in joint ownership of land under the Land Registration Act and the Matrimonial Property Act in Kenya provides that upon one of the joint tenant’s death, the surviving joint tenant is legally entitled to own the entire interest in the property.
Therefore the surviving spouse avoiding tussles such as inheritance which have ensued many matrimonial cases in Kenya. This also allows the surviving spouse in the joint tenancy to avoid the probate process of the property. Joint ownership is also beneficial to a surviving joint owner or spouse. They are protected from unsecured creditors and remain immune to debts incurred by the deceased spouse in their lifetime.
Additionally, both spouses are entitled to a share of the profits or rents received from the property in the case of a disposition of the land. However, Joint ownership of land by spouses can have its limitations; neither of the spouses has the right to legally leave inheritance rights to the land to their children or loved ones at the time of their death.
That is, joint tenants, do not have the right to transfer property interest at the time of their death. In case of a spouse’s death, the dead spouse ceases owning their share of the property, and the surviving spouse is entitled to the entire ownership of the land.
For couples seeking Joint ownership of land in Kenya, have the law to guide them and seek legal guidance to the process.
