§ 10.01 The Nature of Concurrent Ownership [116]

 

A present estate in real or personal property can be simultaneously owned by two or more persons, each holding the right to concurrent possession.  Such an estate is called a concurrent estate.

 

§ 10.02 Types of Concurrent Estates [116-125]

 

                        [A]       Tenancy in Common

           

There are three basic types of concurrent estates: tenancy in common, joint tenancy, and tenancy by the entirety.  In a tenancy in common, each co-owner holds an undivided fractional share in the entire parcel of land, and each is entitled to simultaneous possession and enjoyment of the whole parcel.  Today any devise to two or more unmarried persons is presumed to create a tenancy in common (e.g., “to A and B”).  A tenancy in common interest is freely transferable during the holder’s lifetime and at death.

 

                        [B]       Joint Tenancy

 

The joint tenancy differs from the tenancy in common in that a joint tenant has a right of survivorship.  If O conveys land “to A and B as joint tenants, with right of survivorship,” and A dies first, then B holds fee simple absolute.  English common law required four unities to create and continue a joint tenancy.  The joint tenants had to acquire title at the same time; they had to acquire title by the same deed or will; each interest had to be identical in size; and each tenant had to have an equal right to possession.  Today some states have eroded these requirements.  A joint tenancy interest is inalienable.

 

                        [C]       Tenancy by the Entirety

 

The tenancy by the entirety—now abolished in many states—can only be created in a husband and wife (e.g., “to A and B, as tenants by the entirety”).  It requires the same four unities as the joint tenancy, plus the fifth unity of marriage.  It can be terminated only by divorce, the death of one spouse, or mutual agreement of the spouses.  This estate is controversial because in some states creditors of one spouse cannot levy on property held in tenancy by the entirety.  See, e.g., Sawado v. Endo, 561 P.2d 1291 (Haw. 1977).

 

§ 10.03 Rights and Duties of Cotenants [125-129]

 

In theory, each cotenant has an equal right to possession and enjoyment of the whole property, regardless of the share of his fractional interest.  Thus, under the majority view, even a cotenant in exclusive possession of the property is not liable to the other cotenants for rent, absent an ouster.  However, each cotenant is entitled to a pro rata share of (1) rents paid by third persons and (2) profits from the land.  While all cotenants are obligated to pay their share of mortgage payments, taxes, and related assessments, they are not individually liable in most states for the cost of repairs or improvements, absent special circumstances.

 

§ 10.04 Termination of Concurrent Estates [129-132]

 

Any tenant in common or joint tenant may end the cotenancy by suing for partition; the court will grant partition automatically, with no need to show cause.  The court will either grant partition in kind (physical division of the land) or partition by sale (division of proceeds from the judicial sale of the land).  In addition, a cotenant can always end or sever the joint tenancy merely by conveying her interest to another person.  For example, if A and B are joint tenants, and B conveys her interest to C, then A and C now have a tenancy in common, because the unities of time and title are missing.