Severance of the joint tenancy, of course, extinguishes the principal feature of that estate—the jus accrescendi or right of survivorship. Thus, a joint tenant's right of survivorship is an expectancy that is not irrevocably fixed upon the creation of the estate; it arises only upon success in the ultimate gamble—survival—and then only if the unity of the estate has not theretofore been destroyed by voluntary conveyance, by partition proceedings, by involuntary alienation under an execution, or by any other action which operates to sever the joint tenancy.
Raymond Johnson and plaintiff Hazel Tenhet owned a parcel of property as joint tenants. Assertedly without Tehnet's knowledge or consent, Johnson leased the property to defendant Boswell for a period of 10 years at a rental of $ 150 per year with a provision granting the lessee an "option to purchase." Johnson died some three months after execution of the lease, and Tenhet sought to establish her sole right to possession of the property as the surviving joint tenant. After an unsuccessful demand upon Boswell to vacate the premises, Tenhet brought an action to have the lease declared invalid. The trial court sustained demurrers to the complaint, and Tenhet appealed from the ensuing judgment of dismissal.
Did the trial court err in dismissing Tenhet's action to have the lease between Johnson and Boswell invalidated?
The state supreme court first found the partial alienation of the joint tenancy property by the lease did not effect a temporary or permanent severance of the joint tenancy. The court reasoned that because the joint tenancy estate arose only upon the intent of the parties, severance should be found only when circumstances established a clear and unambiguous intent of the parties to terminate. The court determined Tenhet took the property through right of survivorship. The court then found Tenhet took the property unencumbered by the lease because the interest of the non-surviving joint tenant who made the lease extinguished upon his death. Thus, the court concluded the lease expired when Johnson died.