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| Property law |
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| Part of the common law series |
| Acquisition of property |
| Gift · Adverse possession · Deed |
| Lost, mislaid, or abandoned |
| Treasure trove |
| Alienation · Bailment · License |
| Estates in land |
| Allodial title · Fee simple · Fee tail |
| Life estate · Defeasible estate |
| Future interest · Concurrent estate |
| Leasehold estate · Condominiums |
| Conveyancing of interests in land |
| Bona fide purchaser |
| Torrens title · Strata title |
| Estoppel by deed · Quitclaim deed |
| Mortgage · Equitable conversion |
| Action to quiet title |
| Limiting control over future use |
| Restraint on alienation |
| Rule against perpetuities |
| Rule in Shelley's Case |
| Doctrine of worthier title |
| Nonpossessory interest in land |
| Easement · Profit |
| Covenant running with the land |
| Equitable servitude |
| Related topics |
| Fixtures · Waste · Partition |
| Riparian water rights |
| Lateral and subjacent support |
| Assignment · Nemo dat |
| Other areas of the common law |
| Contract law · Tort law |
| Wills and trusts |
| Criminal Law · Evidence |
A concurrent estate or co-tenancy is a concept in property law, particularly derived from the common law of real property, which describes the various ways in which property can be owned by more than one person at a given time. Property law is the area of Law that governs the various forms of Ownership in Real property (land as distinct from personal or movable possessions Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive A gift, in the Law of Property, has a very specific meaning In order for a Gift to be legally effective the grantor must have intended to give the gift In Common law, adverse possession is the process by which title to another's Real property is acquired without compensation, by as the name A deed is a Legal instrument used to grant a Right. Deeds are part of the broader category of documents under seal. In the Common law of Property, personal belongings that have left the possession of their rightful owners without having directly entered the possession of another person are A treasure trove may broadly be defined as an amount of gold silver gemstones money jewellery or any valuable collection found hidden underground or in places such as cellars Alienation, in Property law, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another Bailment describes a legal relationship in Common law where physical possession of personal Property ( Chattels) is transferred from one person (the The verb license or grant license means to give permission The noun license is the document demonstrating that permission An estate is the Net worth of a person at any point in time It is the sum of a person's Assets - legal rights interests and entitlements to Property of Allodial title is a concept in some systems of property law It describes a situation where Real property ( Land, Buildings and Fixtures) is owned Fee simple is an estate in land in Common law. It is the most common way Real estate is owned in common law countries and is ordinarily the most Fee tail or entail is an obsolete term of art in Common law. It describes an estate of Inheritance in Real property which cannot A life estate is a concept used in Common law and Statutory law to designate the ownership of land for the duration of a person's life A defeasible estate is created when a grantor transfers land conditionally In Property law and Real estate, a future interest is a legal right to property ownership that does not include the right to present possession or enjoyment of A condominium, or condo, is a form of Housing tenure and other Real property where a specified part of a piece of real estate (usually of an apartment In law conveyancing is the transfer of title of Property from one person to another or the granting of an Encumbrance such as a Mortgage or A bona fide purchaser ( BFP) referred to more completely as a bona fide purchaser for value without notice is a term used in the Law of Real property Torrens title is a system of land title where a register of land holdings maintained by the state guarantees an indefeasible title to those included in the register Strata title is a form of ownership devised for multi-level apartment blocks. Estoppel by Deed - A doctrine where rules of evidence prevent a litigant from denying the truth of what was said or done A quitclaim deed is a term used to describe a document by which a person (the "grantor" disclaims any interest the Grantor may have in a piece of Real property A mortgage is the pledging of a property to a Lender as a security for a Mortgage loan. Equitable conversion is a doctrine of the Law of Real property under which a purchaser of real property becomes the equitable owner of title to the property at the An action to quiet title is a Lawsuit brought in a Court having Jurisdiction over land disputes in order to establish a party's title to Real property In Property law and Real estate, a future interest is a legal right to property ownership that does not include the right to present possession or enjoyment of A restraint on alienation, in the Law of Real property, is a clause used in the conveyance of real property that seeks to prohibit the recipient from selling The rule against perpetuities is a rule of law in effect under the property, Trusts, Estate, and Contract law of many Common law The Rule in Shelley's Case is a rule of law that may apply to certain Future interests in Real property and Trusts created in Common law jurisdictions In the Common law of England, the doctrine of worthier title was a legal doctrine that preferred taking title to Real estate by descent A nonpossessory interest in land is a term of the Law of Property to describe any of a category of rights held by one person to use land that is in the possession For railroad track easement see Track transition curve. An easement is the right or freedom to do something or the right to prevent Profit, but an entirely different meaning of the term analogous to an Easement. A covenant running with the land, is a Real covenant, in the Law of Real property. An equitable servitude is a term used in the Law of Real property to describe a Nonpossessory interest in land that operates much like a Covenant running In the law of real property fixtures are anything that would otherwise be a Chattel that have by reason of incorporation or affixation become permanently attached to Waste is a term used in the Law of Real property to describe a Cause of action that can be brought in Court to address a change in condition A partition is a term used in the Law of Real property to describe an act by a Court order or otherwise to divide up a Concurrent estate into Riparian Water rights (or simply riparian rights) is a system of allocating water among those who possess land about its source Lateral and subjacent support, in the Law of property, describes the right a landowner has to have that land physically supported in its natural state by both adjoining An assignment (Latin cessio) is a term used with similar meanings in the Law of Contracts and in the law of Real estate. Nemo dat quod non habet, literally meaning "no one give what one does not have" is a legal rule sometimes called the nemo dat rule that states that the purchase of A contract is an exchange of promises between two or more parties to do or refrain from doing an act which is enforceable in a court of law Tort law is the name given to a body of law that creates and provides remedies for civil wrongs that do not arise out of Contractual duties In Common law, a will or testament is a document by which a person (the Testator) regulates the rights of others over his or her Property The law of trusts and estates is generally considered the body of Law which governs the management of personal affairs and the Disposition of Property of The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different Jurisdictions whose common characteristic is the potential The Law of evidence governs the use of Testimony (eg oral or written statements such as an Affidavit) and exhibits (e Property law is the area of Law that governs the various forms of Ownership in Real property (land as distinct from personal or movable possessions Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive In the Common law, real property (or realty) refers to one of the two main classes of Property, the other class being Personal property ( If more than one person own the same property, they are referred to as co-owners, co-tenants or joint tenants. Most common law jurisdictions recognize tenancies in common and joint tenancies, and some also recognize tenancies by the entirety. Many jurisdictions refer to a joint tenancy as a joint tenancy with right of survivorship, and a few U.S. States treat the phrase joint tenancy as synonymous with a tenancy in common. A US state is any one of the fifty subnational entities of the United States of America that share Sovereignty with the federal government
The type of ownership determines the rights of the parties to sell their interest in the property to others, to will the property to their devisees, or to sever their joint ownership of the property. In Common law, a will or testament is a document by which a person (the Testator) regulates the rights of others over his or her Property In Common law, a will or testament is a document by which a person (the Testator) regulates the rights of others over his or her Property Just as each of these affords a different set of rights and responsibilities to the co-owners of property, each requires a different set of conditions in order to exist.
It should be borne in mind that the law can vary from place to place, and that the following general discussion will not be applicable in its entirety to all jurisdictions.
Contents |
Rights and duties of co-owners
Co-owners, irrespective of the type of tenancy, share certain rights relative to each other and to the property, except to the extent they have modified these rights through an agreement among themselves:
- Each owner has an unrestricted right of access to the property. Where one co-owner wrongfully excludes another from making use of the property, the excluded co-owner can bring a cause of action for ouster, and may receive the fair rental value of the property for the time that he or she was dispossessed.
- Each owner has a right to an accounting of profits made from the property. An account of profits (sometimes referred to as an accounting for profits or simply an accounting) is a type of Equitable remedy most If the property generates income such as rent, each owner is entitled to a pro-rata share of that income. Pro rata is an adverb or adjective meaning in proportion. The term is used in many legal and economic contexts and sometimes spelled pro-rata.
- Each owner has a right of contribution for the costs of owning the property. Co-owners can be forced to contribute to the payment of expenses such as property taxes and mortgages on the entire property. A mortgage is the pledging of a property to a Lender as a security for a Mortgage loan.
Co-owners do not have any obligation to contribute to any costs of repairing or improving the property. If one co-owner adds a feature that enhances the value of the property, that co-owner has no right to demand that any others share the cost of adding that feature - even if other co-owners reap greater profits from the property because of it. However, at partition, a co-owner is entitled to recover the value added by his or her improvements of the property. Conversely, if the co-owner's "improvements" decrease the value of the property, the co-owner is responsible for the decrease. In an Australian case,[1] the High Court said that the costs of repairing by one co-owner must be taken into account on the partition or final distribution (ie sale) of the property. For a topic outline on this subject see List of basic Australia topics. The High Court of Australia is the final court of appeal in Australia the highest court in the Australian court hierarchy.
Furthermore, each co-owner can independently encumber the co-owner's own share in the property by taking out a mortgage on that share (although this may effectively convert a joint tenancy to a tenancy in common, as described below); other co-owners have no obligation to help pay a mortgage that only runs to another owner's share of the property, and the mortgagee can only foreclose on that mortgagor's share. A mortgage is the pledging of a property to a Lender as a security for a Mortgage loan. Foreclosure is the legal proceeding in which a mortgagee, or other Lienholder, usually a lender obtains a court ordered termination of a mortgagor Bank loans secured by mortgages on individual shares of co-owned property is one of the most rapidly expanding areas in the mortgage lending industry.
Finally, co-owners owe one another a duty of fair dealing. Because of this, any co-owner who acquires a mortgage claim against the property must give his co-owners a reasonable opportunity to purchase proportionate shares in that claim.
Tenancy in common
Tenancy in common is the default form of concurrent estate, in which each owner, referred to as a tenant in common, is regarded by the law as owning separate and distinct shares of the same property. By default, all co-owners own equal shares, but their interests may differ in size.
This form of ownership is most common where the co-owners are not married or have contributed different amounts to the acquisition of the property. The assets of a commercial partnership are normally owned on a tenancy in common basis. Also, if the joint owners had attempted to use a form of joint ownership, such as a joint tenancy with right of survivorship or a tenancy by the entirety, and the effort was for some reason invalid, the joint owners would by default be classed as tenants in common. If conclusive evidence is not available of the desire to create a tenancy with rights of survivorship or a tenancy by the entirety, a court will normally determine that a tenancy in common has in fact been created. A court is a forum used by a power base to adjudicate disputes and dispense civil, labour administrative and criminal Justice under its
Tenants in common have no right of survivorship, meaning that if one joint owner dies, that owner's interest in the property will be part of his or her estate and pass by inheritance to that owner's devisees or heirs, either by will, or by intestate succession. A concurrent estate or co-tenancy is a concept in Property law, particularly derived from the Common law of Real property, which describes "Heir" and "Heiress" redirect here For the men and women fragrances endorsed by Paris Hilton see Heiress (fragrance. In Common law, a will or testament is a document by which a person (the Testator) regulates the rights of others over his or her Property Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his or her enforceable debts and funeral expenses without having made a Also, as each joint owner has an interest in the property, they may, in the absence of any restriction agreed to between the joint owners, sell or otherwise deal with the interest in the property (e. g. mortgage it) during their lifetime, like any other personal interest.
Destruction of a tenancy in common
Where any party to a tenancy in common wishes to terminate (usually termed "destroy") the joint interest, he or she may obtain a partition of the property. A partition is a term used in the Law of Real property to describe an act by a Court order or otherwise to divide up a Concurrent estate into This is a division of the land into distinctly owned lots, if such division is legally permitted under zoning and other local land use restrictions. Where such division is not permitted, a forced sale of the property is the only alternative, followed by a division of the proceeds.
If the parties are unable to agree to a partition, any or all of them may seek the ruling of a court to determine how the land should be divided - physically division between the joint owners (partition in kind), leaving each with ownership of a portion of the property representing their share. Courts may also order a partition by sale in which the property is sold and the proceeds are distributed to the owners. Where local law does not permit physical division, the court must order a partition by sale.
Each co-owner is entitled to partition as a matter of right, meaning that the court will order a partition at the request of any of the co-owners. The only exception to this general rule is where the co-owners have agreed, either expressly or impliedly, to waive the right of partition. The right may be waived either permanently, for a specific period of time, or under certain conditions.
Joint tenancy
A joint tenancy or joint tenancy with right of survivorship (JTROS or JTWROS) is a type of concurrent estate in which co-owners have a right of survivorship, meaning that if one owner dies, that owner's interest in the property will pass to the surviving owner or owners by operation of law. The phrase " by operation of law " is a Legal term that indicates that a right or liability has been created for a party irrespective of the intent of that party because The deceased owner's interest in the property simply evaporates and cannot be inherited by his or her heirs, and avoiding probate. Probate is the Legal process of settling the estate of a deceased person specifically resolving all claims and distributing the decedent's Property Under this type of ownership, the last owner living owns all the property, and on his or her death the property will form part of their estate. An estate is the Net worth of a person at any point in time It is the sum of a person's Assets - legal rights interests and entitlements to Property of Unlike a tenancy in common, where co-owners may have unequal interests in a property, joint co-owners have an equal share in the property.
It is important to note, however, that creditors' claims against the deceased owner's estate may, under certain circumstances, be satisfied by the portion of ownership previously owned by the deceased, but now owned by the survivor or survivors. A creditor is a party (eg person organization company or government that has a claim to the services of a second party An estate is the Net worth of a person at any point in time It is the sum of a person's Assets - legal rights interests and entitlements to Property of In other words, the deceased's liabilities can sometimes remain attached to the property.
This form of ownership is common between husband and wife, and parent and child, and in any other situation where parties want ownership to pass immediately and automatically to the survivor. For bank and brokerage accounts held in this fashion, the acronym JTWROS is commonly appended to the account name as evidence of the owners' intent.
To create a joint tenancy, clear language indicating that intent must be used - eg. "to AB and CD as joint tenants with right of survivorship, and not as tenants in common". This long form of wording may be especially appropriate in those jurisdictions which use the phrase "joint tenancy" as synonymous with a tenancy in common. Shorter forms such as "to AB and CD as joint tenants" or "to AB and CD jointly" can be used in most jurisdictions. Words to that effect may be used by the parties in the deed of conveyance or other instrument of transfer of title, or by a testator in a will, or in an inter vivos trust deed. A deed is a Legal instrument used to grant a Right. Deeds are part of the broader category of documents under seal. A testator is a person who has written and executed a last will and testament that is in effect at the time of his/her death This article is about the radio and television stations For other uses see Will. Inter vivos ( Latin, between the living) is a legal term referring to a transfer or gift made during one's lifetime as opposed to a Testamentary transfer
If a testator leaves property in a will to several beneficiaries "jointly" and one or more of those named beneficiaries dies before the will takes effect, then the survivors of those named beneficiaries will inherit the whole property on a joint tenancy basis. But if these named beneficiaries had been bequethed the property on a tenancy in common basis, but died before the will took effect, then those beneficiaries' heirs would in turn inherit their share immediately (the named beneficiary being deceased).
The four unities
To create a joint tenancy, the co-owners must share "four unities":
- Time - the co-owners must acquire the property at the same time. The four unities is a concept in the Common law of Real property describing conditions that must exist in order for certain kinds of property interests to be created
- Title - the co-owners must have the same title to the property. If a condition applies to one owner and not another, there is no unity of title.
- Interest - the co-owners must have the same interest in the property. For example, one owner can't have a life estate and another a fee simple absolute.
- Possession - the co-owners must have an equal right to possess the whole property.
If any of these elements is missing, the joint tenancy is ineffective, and the joint tenancy will be treated as a tenancy in common in equal shares.
Breaking a joint tenancy
If any joint co-owner deals in any way with a property inconsistent with a joint tenancy, that co-owner will be treated as having terminated (sometimes called "breaking") the joint tenancy, as far as it relates to that co-owner. In relation to the other co-owners, if more than one, they remain joint owners of the remaining interest. The dealing may be a conveyance or sale of the co-owner's share in the property. The position in relation to a mortgage is more doubtful (see below). For example, if one of three joint co-owners conveys his or her share in the property to a third party, the third party owns a 1/3rd share on a tenancy in common basis, while the other two original joint co-owners continue to hold the remaining 2/3rds on a joint tenancy basis. This result arises because the "unity of time" is broken: that is, because on the transfer the timing of the new interest is different from the original one. If it is desired to continue to maintain a joint tenancy, then the three original joint co-owners would need to transfer, in the one instrument, the joint interest to the two remaining joint co-owners and the new joint co-owner.
A joint co-owner may break a joint tenancy and maintain an interest in the property. Most jurisdictions permit a joint owner to break a joint tenancy by the execution of a document to that effect. In those jurisdiction which retain the old common law requirements, an actual exchange with a straw man is required. In law the term straw man can refer to a third party that acts as a "front" in a transaction (i This requires another person to "buy" the property from the joint co-owner for some nominal consideration, followed immediately by a sale-back to the co-owner at the same price. In either case, the joint tenancy will revert to a tenancy in common as to that owner's interest in the property.
There is a big problem that is possible with the simple document execution method. In the straw man approach, there are witnesses to the transfer. With the document, there may not be witnesses. With either method, as soon as the break occurs, it works both ways. Because there may not be witnesses, the party with the document could take advantage of that fact and hide the document when the other party dies.
Effect of a mortgage
If one joint co-owner takes out a mortgage on jointly owned property, in some jurisdictions this may terminate the joint tenancy. Jurisdictions which use a title theory in this situation treat a mortgage as an actual conveyance of title until the mortgage is repaid, if not permanently. In such jurisdictions, the taking of a mortgage by one owner terminates the joint tenancy as to that co-owner.
However, in jurisdictions which use the lien theory, the mortgage merely places a lien on the property, leaving the joint tenancy undisturbed. As a lien is not enough to terminate a joint tenancy, if the debtor dies before the creditor sues, the creditor is left with no claim against the property, as the debtor's interest in the property evaporates and automatically vests in the other surviving co-owners.
Tenancy by the entirety
A tenancy by the entirety (sometimes called a tenancy by the entireties) is a type of concurrent estate available only to married couples, where ownership of property is treated as though the couple were a single legal person. NOTICE TO WOULD-BE ROMEOS ************** Like a JTWROS, the tenancy by the entirety also encompasses a right of survivorship, so if one spouse dies, the entire interest in the property passes to the surviving spouse, without going through probate.
To create a tenancy by the entirety, the parties must specify in the deed that the property is being conveyed to the couple "as tenants by the entirety". Also, besides sharing the four unities necessary to create a joint tenancy with right of survivorship - time, title, interest, and possession - there must also be the fifth unity of marriage. However, unlike a JTWROS, neither party in a tenancy by the entirety has a unilateral right to sever the tenancy. The termination of the tenancy or any dealing with any part of the property requires the consent of both spouses. A divorce breaks the unity of marriage, leaving the default tenancy, which may be a tenancy in common in equal shares. Many US jurisdictions no longer recognize tenancies by the entirety. Where it is recognized, benefits can include the ability to shield the property from creditors of only one spouse, as well as the ability to partially shield the property where only one spouse is filing a petition for bankruptcy relief. Bankruptcy is a legally declared inability or impairment of ability of an individual or organization to pay their Creditors Creditors may file a bankruptcy petition against If a non-debtor spouse in a tenancy by the entirety survives a debtor spouse, the lien can never be enforced against the property. On the other hand, if a debtor spouse survives a non-debtor spouse, the lien may be enforced against the whole property, not merely the debtor spouse's original half-interest.
References
- ^ Brickwood v Young, (1905) 2 CLR 387; 11 ALR 154.
External links
Note that every country and every state in the United States has at least minor variations on the law as applied to joint ownership of property. These links generally discuss the law as applied in the state from which they originate:
This outline discusses the general common law of joint ownership of property:
IRS Revenue Procedure 2002-20, which covers the finer details controlling what constitutes a Tenant in Common for federal tax purposes.
Tenant in Common Association
Comprehensive Tenancy in Common Resource Database
Detailed Info on San Francisco Tenancy in Common Rules
Tenancy By the Entirety in Massachusetts.
For a good discussion on this misunderstood estate see Coraccio v. Lowell Five Cents Savings Bank, 415 Mass. 145, 612 N.E. 2d 650. Case citation is the system used in many countries to identify the decisions in past Court cases either in special series of books called reporters
There is nothing in the laws of Massachusetts, or New York as stated in Coraccio, to prevent one co-tenant from conveying her own or his own interest in the property, subject to the continuing rights of the other. The Commonwealth of Massachusetts ( is a state located in the New England region of the northeastern United States. New York ( is a state in the Mid-Atlantic and Northeastern regions of the United States and is the nation's third most populous While it is generally believed that one tenant by the entirety cannot convey their interest because the tenancy cannot be severed, rather it is the survivorship rights of the other that cannot be severed. Thus, if a husband conveyed his interest in the property held as tenants by the entirety to his brother, the husband no longer owns an interest in the property. The brother takes his (the husband's) place within the tenancy. Here is the tricky part: if the wife dies then the husband's brother acquires all interest in the real estate. If the husband dies before the wife then it all goes to her free and clear and the husband's brother has nothing. Some conveyancers have treated deeds by one tenant by the entirety as null. However, such a deed conveys the interest of the grantor in the property subject to the survivorship rights of the other co-tenant. KLussier
Tenancy By the Entirety at Common Law/effect of a conveyance by one:
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