Legal Issues in Joint Ownership of Flat by Husband and Wife – How to Resolve them?

Aditya Pratap is a lawyer in Bombay High Court. He can be contacted at aditya@adityapratap.com.

Joint Ownership – Each Person a ‘Co-Owner’?

When two or more people jointly own a flat in a building, then it is considered to be a case of joint ownership. Each person is a co-owner of the flat and has equal rights vis-a-vis the others.

Each co-owner has an equal right to use and enjoy the property. However, he cannot destroy or alter the flat to the detriment of other co-owners. Each joint or co-owner can enjoy the flat to every possible extent provided that the rights of other co-owners are not prejudiced.

Joint Ownership is Common between Husbands and Wives

Joint ownership of flats is common between husbands and wives who purchase a flat together. Banks also sanction higher loans when a married couple jointly applies for a home loan.

Once the house is jointly purchased, the married couple can reside happily and use the flat as per their requirements. However, disputes can arise in a rocky marriage which may affect joint ownership of the house.

What about Housing Society Membership?

When a flat is jointly purchased between husband and wife, both their names will appear on the share certificate. One spouse will be the active member while the other will be the associate member.

Whether a member is active or associate depends on whose name comes in the share certificate. If the name of the wife is entered first, she will be considered the ‘active member’ while the husband becomes the ‘associate member’.

Divorce or Separation Proceedings – How is Joint Property Divided?

If a married couple is staring at divorce a question may arise – how to partition or allocate the joint property? There are four options – (i) Sell the house and divide the proceeds (ii) Give the house on rent and divide the rental income (iii) One spouse outright acquires the flat from the other. (iv) Physically partition the flat between the spouses.

Options (i) to (iii) are relatively straightforward. Option (iv), i.e. partitioning the flat, is a bit complicated.

How to Partition the Flat?

If the husband and wife agree to divide the flat in an agreed manner, then a ‘Deed of Partition’ should be drafted, executed and registered. It would contain the original layout of the plan as well as the newly carved independent flats along with their respective carpet areas in square feet.

It is advisable to engage a lawyer to draft the partition deed as well as an architect to prepare the plans for sub-dividing the flat. Approval from the Municipal Corporation in compulsory for a successful partition to be effected.

Suit for Partition when Amicable Settlement not Possible:

If the husband and wife are not agreeable to amicably partition the flat, they will have to file a suit for partition under the Partition Act of 1893. This will be filed before the Civil Court having jurisdiction over the area where the flat is situated.

Law of Joint Ownership – Relatively Settled:

Thus the law on joint-ownership is well settled in India and the legal remedies are in place. Joint owners can enjoy property to the fullest possible extent without impeding the rights of one another. In case disputes arise, legal recourse is available with amicable settlements being the best option.

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Advocate Aditya Pratap
About Advocate Aditya Pratap 64 Articles
Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.