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A tenant-in-common may sell his own distinct share without the consent of the other co-owners

A worked RES examination question on co ownership, from our Paper 1 bank — with the rule it turns on, and why each of the four options is right or wrong.

Paper 1Lesson 5Co ownershipFree — no sign-up

The question

Mr Ho and two partners own an office unit as tenants-in-common, each holding a distinct share. Mr Ho wants to sell his own share to an outside investor to raise cash. His partners are not opposed in principle but have not been asked to agree, and one of them is overseas and hard to reach. Mr Ho wants to know whether he must wait for both of them before he can deal with his own share at all.

Which statement is correct?

  1. A. Mr Ho may sell his share only if the whole unit is sold at the same time, shares being inseparable.
  2. B. Mr Ho may not sell his share unless both of the other co-owners first give their consent to the sale.
  3. C. Mr Ho may sell his own share without the others' consent; only the whole unit needs all to agree.
  4. D. Mr Ho may sell his share, and the buyer then becomes a joint tenant alongside the two partners.

The answer, and why

Answer: C

The rule. A tenant-in-common may sell his own distinct share without the consent of the other co-owners. Selling the whole property, however, requires the agreement of all of them.

Why C is correct. Mr Ho holds a distinct share as a tenant-in-common, so he may sell that share to the outside investor without asking his partners. Only a sale of the whole unit would need everyone to agree.

The other options.

  • B requires the partners' consent to sell his own share. Their consent is needed only for the whole.
  • A makes his share unsaleable except with the whole. A distinct share can be sold on its own.
  • D turns the buyer into a joint tenant. The buyer steps into a tenancy-in-common share, not a joint tenancy.

Exam note. Own share, sell freely; whole property, everyone must agree. The buyer takes the share as a tenant-in-common.

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