More than one person may own a particular property at the same time, a principal commonly referred to as “concurrent ownership.” The two most common types of concurrent ownership are the tenancy in common and the joint tenancy. A few states recognize a third type of tenancy, the tenancy by the entirety, which is reserved for married co-owners. Understanding tenancy in common requires knowing what the tenancy does do and, perhaps more importantly, what it does not do. Always consult an attorney in your jurisdiction before deciding how ownership should be held.
Creation of the Tenancy in Common
The law presumes that co-owners of property own the property as tenants in common. In other words, absent language that creates some other type of tenancy, a tenancy in common is the default type of tenancy. No language is required to create a tenancy in common. So long as two or more persons or entities own the property together, it will be presumed that the owners are tenants in common. For example, a conveyance “to A and B” would be presumed to be a tenancy in common. A conveyance to “A and B as joint tenants with right of survivorship” would also initially be presumed a tenancy in common. However, this presumption would be rebutted because the language “with right of survivorship” indicates that a joint tenancy has been created.
No Survivorship Rights
Each tenant in common may lease, mortgage, sell or otherwise transfer all or only a portion of his interest. A tenant in common may do so without the consent or knowledge of the other tenants in common. This power to transfer property also applies upon the death of a tenant in common. Where property is held in joint tenancy, as opposed to a tenancy in common, one joint tenant may not transfer the jointly held property upon death. The deceased’s joint tenancy share automatically passes to the surviving joint tenants. This concept is referred to as the “right of survivorship.” The right extends to the surviving joint tenants. If a joint tenant leaves her share to a beneficiary in a will, that provision of the will is void because it would violate the right of survivorship. By contrast, one tenant in common can leave his share to an intended beneficiary upon his death.
Unequal Ownership Shares Permitted
When owners of property hold title as joint tenants, each property owner has an undivided and equal interest in the entire property. By contrast, tenants in common may hold unequal shares. For example, one tenant in common may have a one-fourth interest, a second owner may have a one-fourth interest, and a third owner may have a one-half interest.
- &ldquo;Understanding Property Law&rdquo;; John Sprankling; 2007
- &ldquo;Property: Examples and Explanations&rdquo;; Barlow Burke and Joseph Snoe; 2008
- &ldquo;Gilbert Law Summaries: Property&rdquo;; James Krier; 2006