What kind of ownership shares can my sons get from my real estate chama if I die?

Dear Vivian,

I am a member of an all-women chama that has been pooling resources to invest in real estate in Syokimau, Kamakis, and Ruai. Recently, I enquired about how my share in the properties could be passed down to my two sons in the unfortunate event of my passing. I am a widow. I was informed that in the case of my demise, my shares in the properties in Syokimau and Kamakis would revert to the investment group, while only my share in the Ruai property would be passed on to my sons. I am eager to understand what is the difference in the properties and what I can do to ensure my children benefit?

Cynthia Wamaitha, Nairobi

Dear Cynthia,

In Kenya, you can own property as an individual (sole ownership), or with others (co-ownership) such as with a spouse, business partner, friend or relative.

Kenyan law recognises co-ownership to be either “joint tenancy” or “tenancy in common”.

The scenario you described highlights potential challenges arising from the type of ownership structure your investment group has chosen for its properties.

Joint tenancy typically includes a right of survivorship, meaning that if one owner passes away, their share automatically transfers to the surviving owners.

On the other hand, tenancy in common does not have a right of survivorship and each owner can pass down their share to their heirs through a will or intestate succession.

It seems that the properties in Syokimau and Kamakis might be held in a way that resembles joint tenancy, leading to automatic reversion of shares to the investment group in the event of a member's demise. T

his is a legal arrangement that prioritises the collective ownership of the group over individual bequests, which are gifts made as part of a will.

To remedy this situation, there are legal steps you can take. First, you could review the chama's constitution or by-laws.

These documents often outline the rules governing membership, decision-making and property ownership.

They may also provide insights into the specific terms under which shares are held and transferred.

Additionally, explore the possibility of revising the chama's constitution to include provisions that align with your wishes regarding the passing down of property to your sons.

This may involve proposing amendments to the constitution, subject to agreement by the group members.

Tenancy in common is ideal for business partners or friends who jointly acquire real estate since the surviving co-owner does not assume ownership of the whole property upon death.

When you own property with other tenants in common, you can transmit your interest in the property to your dependents after a successful completion of succession proceedings.

Remember, property matters can be complex and seeking legal advice tailored to your unique situation is paramount.

I encourage you to take proactive steps such as engaging with your chama members and seeking legal counsel to align the group's policies with your desired outcomes.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).