Joint Tenancy With Rights of Survivorship in West Virginia

A joint tenancy is when more than one party owns the rights to a specific piece of land. This typically happens with a husband and wife buy property, but it can include non-married or even non-related individuals. West Virginia recognizes both joint tenancy and tenancy by the entirety. The difference between the two is how the individual's interest is treated.

In a joint tenancy each owner exclusively owns her discrete portion and can sell, mortgage, or give it away. The property is owned by the individuals in equal shares, but each portion is individually owned and controlled. For example, if three brothers own a three acre plot of land as joint tenants, brother #1 can sell his acre to a friend, brother #2 can mortgage his acre, and brother #3 can pass it to his wife in a will. The benefit of a joint tenancy is that it does not divide up the property at creation among the owners; it is one piece of property, but with multiple and equal ownership.

Tenancy by the Entirety (TBTE) is a form used exclusively by a married couple. While both spouses are alive, each spouse effectively owns the entire estate, and thus neither spouse can contract away rights to the property independently. The intent of this form is to protect a wife or husband from a division or dissolution of the marital estate upon death of a spouse.

West Virginia places strict formal requirements upon the creation of a joint tenancy. The joint tenancy must be in writing, and include four elements. First, each party's undivided interest must vest at the same time. Second, each party must receive an undivided interest in the whole estate. Third, each party must enjoy an equal share and interest. Fourth, all parties must receive their interest in the same title document.

The West Virginia legislature has altered the common law presumption of survivorship in a joint tenancy and tenancy by the entirety by statute. Under Section 36-1-19 of the West Virginia Code, when a joint tenant or a tenant by the entirety dies, her share is treated as if she had been a tenant in common. A tenancy in common does not create a right of survivorship to the remaining spouse. When a tenant in common dies, the interest of the deceased tenant is passed through the decedent's estate. Each tenant may also sell or mortgage their interest in the property.

While part of the common law was abolished, some aspects regarding creation still remain. The Supreme Court of Appeals of West Virginia in Young v. Mcintyre No. 33872 has reiterated that West Virginia Code Sections 36-1-19 and 20 do not abolish the common law requirements of "four unities" in a joint tenancy.

Under West Virginia Section 36-1-20 the deceased's interest will be treated as a tenant in common with no right to survivorship unless there is strong evidence in the creating instrument that the dying owner's interest should belong to the survivor.