(5) Joint Tenancy

What is a joint tenancy?

A form of co-ownership in which two or more persons own the same interest in real property together with a right of survivorship.

What is the key characteristic of a joint tenancy?

The right of survivorship.

What is the right of survivorship?

When one joint tenant dies, that tenant's interest automatically passes to the surviving joint tenant(s).

How is a joint tenancy created?

By the act of the parties.

Can a joint tenancy arise by descent or operation of law?

No.

What four unities are required to create a joint tenancy?

Possession, Interest, Title, and Time (PITT).

What mnemonic helps remember the four unities of a joint tenancy?

PITT.

What is the unity of possession?

Each joint tenant has an equal right to possess and use the entire property.

What is the unity of interest?

Each joint tenant owns the same type and duration of interest.

What is the unity of title?

Each joint tenant acquires title through the same instrument.

What is the unity of time?

Each joint tenant acquires his or her interest at the same time.

What happens to a joint tenant's interest upon death?

It terminates automatically and passes to the surviving joint tenant(s).

What estate does the last surviving joint tenant own?

An estate in severalty, meaning 100% ownership.

What estate does the last surviving joint tenant hold?

An estate in severalty.

What did the common law presume regarding concurrent ownership?

Joint tenancy.

What does modern law generally presume regarding concurrent ownership?

Tenancy in common unless the conveyance expressly creates a joint tenancy.

Why should you be careful to read the call of the question on an exam involving joint tenancy?

Because the common-law presumption differs from the modern presumption.

May a joint tenancy be terminated during a joint tenant's lifetime?

Yes.

May one joint tenant unilaterally sever a joint tenancy?

Yes.

What actions may sever a joint tenancy?

Partition, an inter vivos conveyance by a joint tenant, and in some jurisdictions a mortgage.

What is an inter vivos conveyance?

A transfer made during the grantor's lifetime.

Example: A, B, and C own Blackacre as joint tenants. A conveys his interest to D. How is ownership held afterward?

B and C remain joint tenants with each other, and D owns A's former interest as a tenant in common.

Example: A and B own Blackacre as joint tenants. A conveys a 30% interest to C. How is ownership held afterward?

A and B remain joint tenants as to the remaining 70%, while B and C own the conveyed 30% as tenants in common.

How does a mortgage affect a joint tenancy under the title theory?

It severs the joint tenancy because it destroys the unity of title.

Which jurisdictions follow the title theory of mortgages?

The minority.

How does a mortgage affect a joint tenancy under the lien theory?

It does not sever the joint tenancy.

Which jurisdictions follow the lien theory of mortgages?

The majority.

Under the majority lien theory, what happens if one joint tenant mortgages his interest and later dies first?

The surviving joint tenant generally takes the property subject to the mortgage.

Why are mortgages involving joint tenancies considered highly testable?

Because jurisdictions are split between the title theory and lien theory.

May one joint tenant mortgage the entire jointly owned property without the other joint tenant's consent?

No. A joint tenant may mortgage only his own interest.

How did the common law treat a lease by one joint tenant?

It severed the joint tenancy.

How does the modern view generally treat a lease by one joint tenant?

It does not sever the joint tenancy.

Testable Issue: What are the four unities required to create a joint tenancy?

Possession, Interest, Title, and Time (PITT).

Testable Issue: What is the difference between the common-law and modern presumptions regarding concurrent ownership?

Common law presumed joint tenancy, while modern law presumes tenancy in common.

Testable Issue: What actions may sever a joint tenancy?

Partition, an inter vivos conveyance, and in some jurisdictions a mortgage.

Testable Issue: How does the title theory differ from the lien theory regarding mortgages?

The title theory severs the joint tenancy, while the lien theory does not.

Testable Issue: How does a lease affect a joint tenancy?

Common law treated it as a severance, while the modern view generally does not.

Essay Rule: How should you analyze a joint tenancy?

Determine whether the four unities of PITT exist, identify whether a right of survivorship was created, determine whether any unilateral act severed the joint tenancy, analyze the jurisdiction's treatment of mortgages and leases, and determine the resulting ownership interests.

Master Synthesis: What is the defining feature of a joint tenancy?

A joint tenancy requires the four unities of PITT and carries a right of survivorship that continues unless the joint tenancy is severed during a joint tenant's lifetime.