Co-Ownership of Property in Ghana: Doctrinal, Statutory & Judicial Perspectives

Seth Doe 

Assisted by 

Sarah Asante , Philipa Hagan , Ewurama Mongson

CO-OWNERSHIP OF PROPERTY IN GHANA- A DOCTRINAL, STATUTORY AND JUDICIAL ANALYSIS

1. Introduction

Co-ownership of property arises where two or more persons acquire ownership interests in the same property at the same time. This may occur through joint purchase, joint contribution towards acquisition, inheritance, gift, settlement or grant expressly made in favour of more than one person. Co-ownership is a common phenomenon in Ghana, especially among spouses, family members, business partners, and beneficiaries of estates.

The law governing co-ownership in Ghana is derived from common law principles, statutory reforms under the Conveyancing Decree, 1973 (NRCD 175), now consolidated under the Lands Act, 2020 (Act 1036), and judicial interpretation. Ghanaian law recognises two principal forms of co-ownership: joint tenancy and tenancy in common.

2. Meaning and Nature of Co-Ownership

Co-ownership exists where two or more persons hold the same interest in the same property concurrently. Each co-owner derives title from the same transaction or instrument and holds the property either jointly or in common. The distinguishing feature is that ownership is shared, though the legal consequences differ depending on the form of co-ownership created.

Co-ownership may arise in the following ways:

• Joint acquisition through contribution of purchase price
• Devolution under a will or intestate succession
• Express grant or gift to multiple persons
• Family or settlement arrangements

3. Types of Co-Ownership in Ghana

There are two recognized forms of co-ownership under Ghanaian law: joint tenancy and tenancy in common. Each carries distinct legal characteristics relating to possession, survivorship, alienation, and inheritance.

4. Joint Tenancy

4.1 Nature of Joint Tenancy

Joint tenancy arises where property is conveyed to two or more persons without express words indicating separate or distinct shares. In joint tenancy, co-owners do not own identifiable portions. Instead, they jointly own the whole property. The interest of each tenant is indistinguishable from that of the others. The guiding principle is unity of ownership.

The hallmark of joint tenancy is the doctrine of survivorship, known in Roman law as jus accrescendi, under which the interest of a deceased joint tenant automatically accrues to the surviving tenants.

4.2 The Four Unities

For a joint tenancy to exist, four unities must coexist:

Unity of Possession

All joint tenants are equally entitled to possess and enjoy the entire property. No co-owner may appropriate any part exclusively to himself. One joint tenant cannot sue another for trespass since each has equal possession rights. However, where a co-owner commits acts of waste by substantially altering or damaging the property, legal action may be maintained.

Waste refers to acts that permanently reduce the value or alter the nature of the land or building.

Unity of Interest

All joint tenants must hold the same type of interest in the property, of the same nature, duration, and extent. Each tenant owns the whole rather than a fraction. Any income derived from the property, such as rent, is shared equally.

Unity of Title

All joint tenants must derive their title from the same document or transaction, such as the same conveyance, will, or settlement instrument.

Unity of Time

The interests of all joint tenants must vest at the same time. A later acquisition by a new party destroys this unity.

4.3 Right of Survivorship

The right of survivorship means that upon the death of one joint tenant, his interest does not devolve to his heirs or estate. Instead, it automatically vests in the surviving joint tenants. This transfer occurs by operation of law and does not pass through probate or intestate administration.

This feature makes joint tenancy attractive in family and spousal arrangements where continuity of ownership is desired.

However, a joint tenant cannot transfer his interest to another person without destroying the joint tenancy. Once alienation occurs, the survivorship mechanism ceases to operate.

5. Severance of Joint Tenancy

5.1 Meaning of Severance

Severance occurs when a joint tenant alienates or transfers his interest to another person during his lifetime. This action destroys the four unities of joint tenancy, particularly the unity of title, time, and interest. The joint tenancy is thereby converted into a tenancy in common.

5.2 Legal Effect of Alienation

When a joint tenant transfers his interest:

• The transferee becomes a tenant in common
• The remaining original co-owners continue to hold their interests jointly among themselves
• Survivorship ceases with respect to the transferred share

For example, where four persons jointly own forty acres of land and one sells his interest, the buyer becomes tenant in common with respect to ten acres, while the remaining thirty acres continue to be held by the three original joint tenants.

Partition may then occur either voluntarily or by court order to separate physical portions.

6. Tenancy in Common

6.1 Nature of Tenancy in Common

Tenancy in common is the opposite of joint tenancy. Under this arrangement, each co-owner owns a distinct, undivided share in the property. Ownership is fractional rather than unified.

Each tenant in common has a separate proprietary interest which may be sold, transferred, mortgaged, or inherited independently of the others.

6.2 Absence of the Four Unities

Tenancy in common does not require the four unities:

• There is no unity of possession in practical terms because each tenant may occupy or control a defined portion and may sue another tenant for trespass if boundaries are violated.
• There is no unity of title since tenants may derive ownership from different transactions or documents.
• There is no unity of time because interests may vest at different periods.
• There is no unity of interest because ownership shares may be unequal.

6.3 Absence of Survivorship

Unlike joint tenancy, tenancy in common has no right of survivorship. When a tenant in common dies, his share devolves to his heirs or personal representatives under a will or intestate succession law. This makes tenancy in common more compatible with inheritance principles.

7. Statutory Presumption on Co-Ownership

7.1 Conveyancing Decree 1973

Before 1973, Ghanaian law presumed that where property was acquired jointly, a joint tenancy was created unless otherwise stated.

This presumption was reversed by section 14(3) of the Conveyancing Decree, 1973, which provided that a conveyance to two or more persons creates a tenancy in common unless the instrument expressly states joint tenancy or clearly indicates survivorship intention.

Although enacted in 1973, the decree became operational in January 1974. Therefore, acquisitions made before 1974 remain governed by the old common law presumption.

7.2 Lands Act 2020 (Act 1036)

Section 40(3) of Act 1036 restates the same principle. It provides that conveyance to two or more persons creates a tenancy in common unless the instrument expressly creates joint tenancy or survivorship rights.

This provision reflects Ghana’s modern policy preference for divisible ownership rather than automatic survivorship.

8. Judicial Interpretation of Co-Ownership

8.1 Biney v Biney 

In this case, a settlement executed in 1901 devised property to life tenants with remainder to children. After the life tenants died, the children became remaindermen. Over time, all but one of the remaindermen died. The surviving remainderman claimed sole ownership by survivorship, while the children of deceased remaindermen claimed shares. The court held that since the settlement predated the Conveyancing Decree, the common law presumption of joint tenancy applied. Consequently, survivorship operated in favour of the plaintiff who became the absolute owner. The case established that the applicable law depends on the date of acquisition and reinforced survivorship under pre-1974 transactions.

8.2 Agyentoa v Owusu

The deceased willed part of a house to her son and daughter. After the son died intestate, his children occupied the rooms he previously controlled. The surviving sister sold the property and sought to eject the children. The court held that the siblings held the property as tenants in common under post-1973 law. Consequently, the son’s share devolved to his children under the intestate succession law. The court emphasized that the use of words implying separate ownership such as “absolutely” indicates severance and tenancy in common. Survivorship, therefore, did not apply.

8.3 Fenuku v John Teye

The plaintiff and his wife jointly acquired land in 1954 when the presumption of joint tenancy applied. The wife died in 1958. The husband later transferred most of the land to a third party while reserving a portion for his son. After the husband’s death, his children argued that he could only transfer half of the land since ownership should have been in common. The court rejected this argument and held that since the land was acquired before 1974, it was held under joint tenancy. The husband, therefore, became the sole owner by survivorship upon his wife’s death and had full authority to transfer the property. This case reaffirmed the temporal application of statutory reforms.

9. Practical Implications of Co-Ownership

Joint tenancy favours continuity of ownership and avoids fragmentation through inheritance but restricts independent alienation.

Tenancy in common promotes individual proprietary autonomy and inheritance rights but increases fragmentation and potential disputes.

Modern conveyancing practice in Ghana increasingly favours tenancy in common due to the statutory presumption and compatibility with intestate succession laws.

10. Conclusion

Co-ownership of property in Ghana reflects a blend of common law tradition and statutory reform. While joint tenancy emphasizes unity and survivorship, tenancy in common promotes divisibility and inheritance rights. The Conveyancing Decree of 1973 and the Lands Act 2020 have shifted Ghanaian land policy towards tenancy in common as the default form of co-ownership.

Judicial decisions such as Biney v Biney, Agyentoa v Owusu, and Fenuku v John Teye demonstrate that courts carefully apply transitional principles and statutory intent to protect vested rights while advancing modern land administration goals.

Understanding the legal consequences of co-ownership remains essential for land transactions, estate planning, and property dispute resolution in Ghana.