In Arkansas, and in many other states, statutes have been adopted which presumptively construe an instrument to create a tenancy in common rather than a joint tenancy. These statutes do not prohibit joint tenancies but merely provide for a construction against a joint tenancy if the intention to create it is not clear. A statute such as Ark. Code Ann. § 18-12-603 (1987) is not an expression of a public policy against joint tenancies but is merely a choice by the legislature of a rule of construction that selects one of two possible interpretations of a provision otherwise ambiguous.
The deed in question was executed by the grantor to the three grantees "jointly and severally, and unto their heirs, assigns and successors forever," with the grantor retaining a life estate. Two of the three grantees predeceased the grantor. The surviving grantee sought a declaration in the chancery court that the grantor intended to convey the property to the grantees as joint tenants, thereby making the surviving grantee the sole owner of the property. The descendents of the two deceased grantees argued that the deed created a tenancy in common among the grantees.
If there is no intent to create a right of survivorship found in the instrument of conveyance, is it valid to establish a joint tenancy?
The law of Arkansas construes that creation of common tenancy must show a clear intent to create a right of survivorship. The court found that the use of the words "jointly and severally" did not create a joint tenancy. There was no mention in the deed of "survivorship." Thus, the court held that the language of the deed was insufficient to overcome the statutory presumption in Ark. Code Ann. § 18-12-603 (1987) of a tenancy in common. The court noted that evidence of the grantor's intention could not prevail over the statute.