Concurrent Estates — Co-Ownership of Real Property

What is a concurrent estate?

Ownership of the same property by two or more people at the same time.

What possessory right does each co-owner generally have?

The right to possess and enjoy the entire property.

What are the three forms of concurrent ownership?

Joint tenancy, tenancy in common, and tenancy by the entirety.

What is the defining feature of a joint tenancy?

The right of survivorship.

What is the right of survivorship?

When a co-owner dies, that owner's interest automatically passes to the surviving co-owner or co-owners.

Does a deceased joint tenant's interest pass by will or intestacy?

No. It passes automatically to the surviving joint tenants.

If A and B are joint tenants and B dies, who owns the property?

A becomes the sole owner through the right of survivorship.

What is generally required to create a joint tenancy?

The four unities and clear language expressing a right of survivorship.

What are the four unities of joint tenancy?

Time, title, interest, and possession.

What does unity of time require?

The joint tenants must acquire their interests at the same time.

What does unity of title require?

The joint tenants must acquire their interests through the same instrument.

What does unity of interest require?

The joint tenants must hold identical interests, including equal ownership shares.

What does unity of possession require?

Each joint tenant must have an equal right to possess the entire property.

What language clearly expresses an intent to create a joint tenancy?

“To A and B as joint tenants with right of survivorship.”

What form of co-ownership is generally presumed when property is conveyed to two or more people without additional qualifying language or circumstances?

A tenancy in common.

Does a tenancy in common include a right of survivorship?

No.

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

It passes under the owner's will or through intestacy.

What does it mean that a tenancy-in-common interest is devisable?

The owner can leave the interest to someone by will.

What does it mean that a tenancy-in-common interest is descendible?

The interest can pass to heirs through intestacy.

Can a tenant in common transfer their interest during life?

Yes.

Must tenants in common have equal ownership shares?

No. They may hold unequal shares, such as 70% and 30%.

Does a 70% ownership share give a tenant in common exclusive possession of 70% of the physical property?

No. Each tenant in common has the right to possess the entire property.

When do ownership percentages become relevant for tenants in common?

When allocating sale proceeds or shares of property expenses.

Are the four unities required to create a tenancy in common?

No.

What is a tenancy by the entirety?

A form of marital co-ownership that includes a right of survivorship.

Who can hold property as tenants by the entirety?

Married spouses only.

Does a tenancy by the entirety include a right of survivorship?

Yes.

How do many states that recognize tenancy by the entirety treat a conveyance to married spouses?

They presume it creates a tenancy by the entirety unless the grant specifies otherwise.

What is severance?

The termination of the special co-ownership relationship carrying survivorship rights.

What generally results from severance of a joint tenancy?

A tenancy in common as to the severed interest.

What happens when one of two joint tenants conveys their interest to a third party during life?

The joint tenancy is severed, and the third party and remaining owner hold as tenants in common.

A and B are joint tenants, and A conveys their interest to C. How do B and C hold the property?

As tenants in common.

If one of three joint tenants conveys their interest, what happens to survivorship between the other two?

The other two may retain their joint tenancy and survivorship rights between themselves.

What generally happens to a tenancy by the entirety upon divorce?

It terminates, and the former spouses generally hold as tenants in common.

Does severance necessarily end co-ownership?

No. The owners may continue holding the property as tenants in common.

What is partition?

A process that divides co-owners' interests and ends their co-ownership.

Which co-owners can bring a court action for partition?

Joint tenants and tenants in common.

What is partition in kind?

Physical division of the property into separately owned portions.

What is partition by sale?

Sale of the property followed by division of the proceeds according to the owners' interests.

Can co-owners agree to partition without litigation?

Yes.

What can a court do when co-owners cannot agree on partition?

Order partition, including a sale of the property when appropriate.

What is the difference between severance and partition?

Severance changes the form of co-ownership; partition ends co-ownership.