Ownership of a real estate property comes with its share of ownership rights that allow you to enjoy, use, improve, transfer or dispose of the property as you deem fit. This involves transferring ownership rights by agreement or by operation of law. An owner can transfer the entirety of his property to another or can split the property to transfer it to multiple people. 

There are some types of ownership like tenancy by entirety that involves a legal couple is considered as one and thus treated as a “sole owner” of the property. The question is, “Can you sell your property to your spouse?” Good question. Read on to figure out the answer. 

There are other questions related to ownership and the ways it can be transferred. This article seeks to explain some of the concepts related to ownership and the ways it can be transferred.

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How do I split ownership of a house?

Other than sole ownership, there is another type of ownership called co-ownership where there are co-owners with their respective shares in the property. Co-ownership is of two types:

Joint Tenancy:

Under Indian Law, two or more people can enter into a joint tenancy ownership agreement and become joint owners or co-owners of a residential property. 

  • In Joint Tenancy, the co-owners have purchased the house jointly by paying their respective share of the money. But each co-owner has proprietary rights over the entirety of the house. 
  • Not only do they have proprietary rights over the entirety of the house, but joint owners have equal shares in the asset. However, they also have equal responsibility when it comes to bearing debts and discharging liabilities and encumbrances on the property. 
  • Joint Tenancy also comes with the right by survivorship which means that if a co-owner dies, his/her share and rights vests in the surviving co-owner. 
  • Due to the automatic transfer of the share to the surviving co-owner/s in case of death of one co-owner, this is the joint tenancy’s greatest advantage. 

Tenancy in common:

Tenancy in common is a type of where each co-owner/tenant has an interest in the undivided estate of the property. This type of co-ownership is similar to joint ownership. 

  • However, this type of co-ownership differs from a joint tenancy in that it does have the option of right by survivorship. 
  • This means that when a co-owner dies, his interest or share in the property does not devolve to the surviving co-owner/s. It transfers to his/her legal heir. 

Can I sell my property to my wife?

When it comes to purchasing property by co-tenancy or ownership, a legal couple may go for the option of tenancy by the entirety.

  • In a tenancy by the entirety, the legal couple is presumed to be one and thus have a united interest in the property. 
  • Under this type of tenancy, a spouse cannot transfer his/her share or interest in the property to a third party. S/he can only convey their respective interest to the other spouse.
  • Thus, the answer to the question is: Yes, a husband can sell or transfer his interest or part of the property to the wife. He may have to show he received valid consideration against such conveyance or transfer.
  • Also, in joint tenancy and tenancy in common, there are no restrictions on the husband selling his property to his wife against valid consideration. 
  • If the case is of a self-acquired solely owned property where the husband owns the property, there is no issue. He can sell his property to his wife without any obstacles. 

How can I buy a house from my family? 

If you want to buy a house and find that you would prefer dealing with a known person than a stranger, you may decide that you want to buy a house from a family member.

  • In such a case, there are no legal restrictions on a transaction like this. It is simply a matter of personal choice whether you want to purchase a house from a family against a valid consideration. 
  • You can avail home loans to finance your purchase of the house, or you can use your own cash reserves.
  • It is advised that you do not grow lax with paperwork simply because you are dealing with a family member. The legal processes should be followed diligently to avoid problems both for you and your family members in the future.
  • Also, discuss openly and decide on the value to be paid for the house beforehand. 
  • No tax implications are invited on properties that a person receives from a family member using a gift deed.

How do I transfer ownership of a partial property?

Section 44 of the Transfer of Property Act, 1882 provides for the transfer of property by a co-owner. 

  • Under this provision, a co-owner who is legally competent may legally transfer his share or interest in the property to a transferee who by extension of the transfer gets the legal rights and interests of the transferor in the joint/co-ownership. 
  • However, this transfer is subject to the liabilities and conditions on the property present at the time of transfer.
  • If you are a member of a Hindu Undivided Family (HUF) and reside in an undivided house with the joint Hindu family, you can sell your share, but if the transferee is not a family member, s/he will not get possession or rights in the common area shared by all the other family members. Otherwise, s/he will have possession and ownership rights over your exclusive share of the property.
  • A transfer can be executed by a conveyance deed (sale deed is a type of conveyance deed) against which the transferor will receive valid consideration. 
  • When the nature of a co-ownership is not specifically described, it is called a tenancy in common. Under this type of co-ownership, a transferor can sell his ownership interest to a third person, subject to the liabilities on the joint property.
  • In a tenancy by the entirety, however, a co-owner/spouse (co-owners in tenancy by the entirety are legally required to be a legally married couple) cannot transfer his or her interest to a third party. S/he can only transfer the interest to the other spouse. In order to effectively transfer his or her share, the tenancy by entirety property needs to be legally partitioned.

Can I mortgage a partly owned property?

A joint owner of the property can mortgage the property with the consent of the other parties. It is important to obtain consent as all the owners of the property can are made joint and severally liable for the debt. It would be unfair on the other owners’ part if they have to pay for the loans which they never consented to or even know about.

When the borrower fails to repay his loan amount, the other owners of the property can be called upon to clear the dues as he acts as a mortgage in such a situation. The banks usually start with the recovery process after this. The bank will have a claim against a person who is also an owner but not a borrower in cases of arrears.

Conclusion

A homeowner can either be a sole owner or a co-owner sharing the property with another person. As the owner of the property or your share, you have certain interests and rights vested in the property. If you are a sole owner and legally competent, you can legally transfer your ownership interest to another person, be they family or a third party. In joint ownership, you are bound by certain restrictions like the interests of your fellow co-owner/s vested in the property. You can use your share as you please. You can also sell your share to anyone as you please subject to the liabilities and conditions on the house present at the time of transfer.

You have to carefully examine your options when it comes to both sole and co-ownership. If you really wish to own a particular property but do not have the means, you could pool in your resources with another to jointly purchase it. However, it comes with certain restrictions in your ownership rights. So carefully weigh the pros and cons of your decision before taking action.