Transferring property from join tenancy to tenancy in common
Question
I own a property jointly with my ex-spouse. We mutually agreed to not sell the house but to rent it out with the proceeds to be used accordingly. The house is currently held in Joint Tenancy which means the following:
- You have equal rights to the whole property.
- The property automatically goes to the other owner if you die.
- You cannot pass on your ownership of the property in your will.
I am looking to change the ownership to Tenants in common which would mean the following:
- You can own different shares of the property.
- The property does not automatically go to the other owner if you die.
- You can pass on your share of the property in your will.
The thought process behind this is, due to having two children, I wish to set up a trust fund that in the case of my death, my share of the property can go into that trust, with the beneficiaries being the children. The thought process behind a trust fund is to ensure that any proceeds left behind are not squandered, used appropriately and effectively.
Is this whole process permissible according to Shariah?
بسم الله الرحمن الرحیم
Answer
The process is not only permissible, it is recommended. The governing document of the trust should stipulate that the trust should be divided among the heirs based on Islamic laws of inheritance. For couples who have split, tenancy in common is the preferred option, because each person has a distinct separately transferable interest. However, if for some reason, joint tenancy is maintained, then it is necessary on both to write a will and stipulate therein that upon their demise, the co-owner must distribute their share in the property according to the Islamic laws of inheritance.
Allah knows best
Yusuf Shabbir
25 Jumādā al-Thāniyah 1445 / 8 January 2024
Approved by: Mufti Shabbir Ahmed and Mufti Muhammad Tahir
