Key Takeaways
- Tenancy in common is the default co-ownership form with no right of survivorship
- Joint tenancy requires the four unities (TTIP) and has right of survivorship
- Tenancy by the entirety is reserved for married couples and cannot be unilaterally severed
- A joint tenant can sever the joint tenancy by inter vivos conveyance, creating tenancy in common
- Co-tenants have rights to share rents and may seek partition
Concurrent Ownership
When two or more persons share ownership of property simultaneously, they hold as co-tenants. Each co-tenant has an undivided right to possess the entire property.
Types of Concurrent Estates
1. Tenancy in Common
The tenancy in common is the default form of concurrent ownership in most jurisdictions.
Characteristics:
- No right of survivorship: Each tenant's interest passes through their estate at death
- Only unity of possession required: Each tenant has right to possess the whole
- Freely transferable: Can be conveyed, devised, or inherited
- Unequal shares permitted: Tenants may own different fractional interests
Example: O conveys "to A and B." Without additional language indicating joint tenancy, A and B hold as tenants in common.
2. Joint Tenancy
A joint tenancy includes a right of survivorship: when one joint tenant dies, their interest automatically passes to the surviving joint tenant(s).
The Four Unities (TTIP):
| Unity | Requirement |
|---|---|
| Time | All interests acquired simultaneously |
| Title | All acquired through same instrument |
| Interest | All have equal shares and same type |
| Possession | All have right to possess whole |
Creation Language: "to A and B as joint tenants with right of survivorship" or similar express language. Some jurisdictions require specific survivorship language.
Modern Trend: Many jurisdictions allow a sole owner to create a joint tenancy by conveying directly to themselves and another, without the traditional requirement of using a "straw man" intermediary.
3. Tenancy by the Entirety
Available only to married couples in jurisdictions that recognize it. Functions similarly to joint tenancy but with additional protections.
Characteristics:
- Right of survivorship: Surviving spouse takes entire property
- Cannot be unilaterally severed: Neither spouse can transfer their interest alone
- Protected from individual creditors: Creditors of one spouse generally cannot reach the property
- Requires five unities: Time, Title, Interest, Possession + Marriage
Severance: Only by:
- Mutual agreement and joint conveyance
- Divorce (converts to tenancy in common)
- Death of one spouse
Severance of Joint Tenancy
A joint tenancy can be converted to a tenancy in common through severance:
Acts That Sever
| Act | Effect |
|---|---|
| Inter vivos conveyance | Severs as to conveying tenant; new owner holds as tenant in common with remaining joint tenants |
| Mortgage (Title Theory) | Severs joint tenancy by transferring legal title to mortgagee |
| Mortgage (Lien Theory) | Does NOT sever—mortgage is only a lien |
| Lease | Jurisdictions split on whether this severs |
| Contract to sell | May create equitable conversion that severs |
| Murder of co-tenant | Jurisdictions vary; some prevent murderer from taking by survivorship |
Acts That Do NOT Sever
- Devise in will (right of survivorship defeats will)
- Secret intent to sever
- Mortgage in lien theory state (unless foreclosed)
- Filing a partition action (severance occurs only upon final judgment)
- Negotiations to sell or partition
Murder of Co-Tenant
When one joint tenant murders another, jurisdictions handle survivorship differently:
| Approach | Effect |
|---|---|
| Constructive Trust | Murderer holds legal title but as constructive trustee for victim's estate |
| Severance at Death | Murder severs joint tenancy; murderer takes only their 1/2 as TIC |
| Statutory Forfeiture | Murderer forfeits entirely; victim's estate takes all |
Most jurisdictions prevent the murderer from profiting through the "slayer statute" or equitable principles.
Rights and Duties of Co-Tenants
Possession
- Each co-tenant has right to possess the entire property
- No co-tenant may exclude another from any part
Ouster
If one co-tenant wrongfully excludes another from possession:
- Ousted tenant may recover for lost rental value
- Ousted tenant may recover for exclusive use by possessing tenant
Rents and Profits
- Out-of-possession tenant entitled to share of net rents from third parties
- Generally no duty to pay rent to other co-tenants for personal occupancy (absent ouster)
Expenses
| Expense Type | Contribution Rights |
|---|---|
| Necessary repairs | Modern trend: Can seek contribution if notified other co-tenants |
| Improvements | No right to contribution (may receive credit in partition) |
| Taxes/Mortgage | Co-tenant in sole possession: Credit only for amounts exceeding rental value |
Partition
Any co-tenant can seek judicial partition:
- Partition in kind: Physical division preferred if practical
- Partition by sale: Property sold, proceeds divided proportionally
Comparison Chart
| Feature | Tenancy in Common | Joint Tenancy | Tenancy by Entirety |
|---|---|---|---|
| Right of Survivorship | No | Yes | Yes |
| Unities Required | Possession only | TTIP (4) | TTIP + Marriage (5) |
| Unilateral Severance | N/A | Yes | No |
| Creditor Access | Yes | Yes (to tenant's share) | No (individual creditors) |
| Creation | Default | Express language | Married couples |
A and B hold property as joint tenants with right of survivorship. A secretly executes a will devising his interest to his daughter C. A then dies. Who owns the property?
H and W hold property as tenants by the entirety. H's judgment creditor seeks to execute on the property to satisfy a debt. In most jurisdictions, the creditor will:
A, B, and C hold property as joint tenants. A conveys her interest to D. What is the resulting ownership?
Owen conveyed Blackacre "to Abby and Ben as joint tenants with right of survivorship." One year later, Abby conveyed her interest in Blackacre to Carlos. Abby then died intestate, survived by her son David as her sole heir. Carlos brings an action to partition Blackacre. What is the result?
Harry and Wendy, a married couple, acquired title to a residential property as tenants by the entirety. Without Wendy's knowledge or consent, Harry executed a deed purporting to convey his interest in the property to his friend Frank. Harry subsequently died. In an action to quiet title, the court should determine that the property is owned by:
In 2020, a father conveyed real property to his son and daughter as joint tenants with right of survivorship. In 2022, the son executed a mortgage on the property to a bank to secure a personal loan. In 2023, the son died intestate, survived by his only child as heir. At the time of the son's death, the mortgage remained unpaid. The jurisdiction follows the lien theory of mortgages. Who owns the property?