Property Law: Undivided Concurrent Ownership

In property law, two or more people can share ownership of an estate. When they do, each of them has the right to use and enjoy the whole property that they co-own. Three forms of concurrent ownership exist:

  • Tenancy in common

  • Joint tenancy

  • Tenancy by the entirety

Tenancy in common

Unless the instrument creating the concurrent ownership clearly says otherwise, co-owners are tenants in common. When a group of people share ownership by intestate succession, they’re tenants in common with each other.

As with all forms of concurrent ownership, each tenant in common has an equal right to use the whole property. However, they may own different fractional shares of the property. That means, for example, that if they sell the property, they’ll receive different fractional shares of the proceeds of the sale.

Each tenant in common may transfer her share of ownership during her life or by will at her death. If she doesn’t, her share passes to her heirs when she dies.

Furthermore, each tenant in common may end her co-ownership altogether by a judicial action called a partition. In a partition action, the court will try to divide the property physically among the co-owners in proportion to their respective fractional shares. If that isn’t possible, the court will order the property to be sold, and the proceeds of the sale will be divided among the co-owners proportionally.

Joint tenancy

Two or more people own property as joint tenants if the granting instrument expressly grants the property to them as joint tenants. Joint tenants must own equal shares; they can’t own different fractional shares of the property.

The biggest difference from a tenancy in common is that a joint tenant can’t transfer her share to heirs or devisees at her death. Instead, the deceased joint tenant simply doesn’t share ownership anymore and the surviving joint tenants own the whole property in equal shares. The right of the other joint tenants to own the share of the deceased joint tenant is called the right of survivorship.

However, a joint tenant can terminate the right of survivorship during her lifetime by selling her share to someone else, or in some cases by taking similar action with her own share, like leasing it or mortgaging it. Doing so is called severance.

Severance doesn’t end the person’s co-ownership with the others, but it does end their right of survivorship with respect to each other. After severance, the severing joint tenant becomes a tenant in common with the other co-owners, although they remain joint tenants among themselves.

A joint tenant also may bring a partition action, just like a tenant in common may.

Tenancy by the entirety

A tenancy by the entirety is a special form of joint tenancy that can be created only between a husband and a wife. As with joint tenancy, the tenants by the entirety always have equal half-shares in the property. Also like a joint tenancy, the tenants by the entirety have a right of survivorship. When one of the spouses dies, the other owns the property by himself or herself.

Unlike with the joint tenancy, however, one tenant by the entirety can’t unilaterally sever his or her tenancy by the entirety and become a tenant in common with the other spouse.

In fact, in most states, one tenant by the entirety can’t unilaterally convey any interest in the property at all; the two tenants by the entirety must join together in order to convey an interest in the property to someone else. Nor can a tenant by the entirety bring a partition action.

Of course, one tenant by the entirety can end the co-ownership by giving her interest to the other or by ending the marriage altogether.

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