(6) Tenancy in Common

What is a tenancy in common?

A form of co-ownership in which each co-tenant owns an undivided interest in the whole property.

What does it mean that each tenant in common owns an undivided interest?

Each co-tenant owns a fractional interest but has the right to possess and use the entire property.

What is the only unity required for a tenancy in common?

The unity of possession.

What is the unity of possession?

Each co-tenant has an equal right to use, occupy, and enjoy the entire property.

Does a tenancy in common include a right of survivorship?

No.

What happens to a tenant in common's interest upon death?

It passes under the co-tenant's will or, if there is no will, to the co-tenant's intestate heirs.

How does modern law generally presume concurrent ownership when property is conveyed to two or more persons?

Tenancy in common, unless the conveyance expressly provides otherwise.

Why is tenancy in common the modern default form of concurrent ownership?

Because modern law presumes tenancy in common unless a different estate is clearly expressed.

May a tenant in common freely transfer his or her ownership interest during life?

Yes.

Does a transfer by one tenant in common affect the ownership interests of the other co-tenants?

No.

May tenants in common own unequal ownership interests?

Yes. Each tenant in common may own a different fractional share while retaining equal possessory rights.

Can each tenant in common possess the entire property despite unequal ownership percentages?

Yes. Each co-tenant has the right to possess the whole property.

How may a tenancy in common be terminated?

By a judicial partition action or by all co-tenants joining together to sell or otherwise dispose of the property.

What is a partition action?

A court proceeding that divides the property or its proceeds among the co-tenants.

May one tenant in common force a partition?

Yes.

Must all tenants in common agree before the property may be voluntarily sold?

Yes.

Testable Issue: What is the only unity required for a tenancy in common?

The unity of possession.

Testable Issue: What happens to a tenant in common's interest upon death?

It passes by will or intestate succession because there is no right of survivorship.

Testable Issue: What is the modern presumption when property is conveyed to two or more persons?

Tenancy in common unless the conveyance expressly creates another form of concurrent ownership.

Testable Issue: How may a tenancy in common be terminated?

Through judicial partition or by all co-tenants agreeing to sell or otherwise dispose of the property.

Essay Rule: How should you analyze a tenancy in common?

Determine whether the parties have equal possessory rights through the unity of possession, recognize that no right of survivorship exists, determine how ownership passes upon death, and analyze whether the tenancy has been terminated by partition or voluntary disposition.

Master Synthesis: What is the defining characteristic of a tenancy in common?

Each co-tenant owns a separate undivided interest in the entire property, shares equal possessory rights with the other co-tenants, and may freely transfer that interest because no right of survivorship exists.