Cotenancy — Real Property

Two business partners bought a warehouse years ago. The deed conveyed it to Mara and Nolan, jointly, and said nothing else. They were never married. Last month Nolan died, leaving a valid will that devises all of his real estate to his nephew. Mara tells the nephew he inherited nothing, because the survivor takes everything. Who is right?

The nephew. And the reason is a single word that is not in that deed. Every cotenancy question is really two questions stacked on top of each other. Which of the three concurrent estates is this? And then, how do the co-owners' rights and duties to each other sort out? Nail the label and most of the rest falls into place.

Four stops. First, the three concurrent estates and the unities that separate them. Second, severance, the quiet event that kills a right of survivorship. Third, partition, the escape hatch for co-owners who want out. And fourth, the relations among cotenants. Who can live there, who owes rent, who pays for the roof.

Cotenancy is just co-ownership. Two or more people owning the same land at the same time, each with the right to use the whole of it. Three flavors. The tenancy in common, the joint tenancy, and the tenancy by the entirety. All three share one feature. Unity of possession.

That means each cotenant may possess and enjoy the entire property, not a fenced-off physical slice, no matter how small their fractional share. A cotenant with a 10% interest can still walk across all of it.

What separates the three estates is whether they carry a right of survivorship, and how many of the historic unities they demand at creation. There are four, and they are worth memorizing, because they drive both how a joint tenancy is created and how it is later broken.

Time. All cotenants acquire their interests at the same moment. Title. All take by the same instrument, one deed or one will. Interest. All hold equal shares of the same kind and duration. And Possession. Each has the right to possess the whole. That last one is the unity every cotenancy must have.

A tenancy in common needs only that unity of possession. Shares can be unequal. Each cotenant owns a distinct, undivided fractional interest, freely transferable during life and, crucially, descendible and devisable at death. It passes by will or intestacy to their heirs. Never automatically to the other cotenants. No right of survivorship.

And modern law treats it as the default. Where a grant to two or more people is ambiguous, courts presume a tenancy in common. That is Mara and Nolan. Jointly is ambiguous, so the nephew takes Nolan's half.

A joint tenancy requires all four unities at creation, plus a clear expression of intent to create a right of survivorship. That right is the whole point. When one joint tenant dies, their interest is instantly extinguished and the survivors absorb it automatically. Nothing passes through probate, and a joint tenant's will cannot devise the interest. Survivorship beats the will.

Because survivorship disinherits the deceased owner's family, modern courts refuse to presume it. You need explicit language. To Ana and Ben as joint tenants with right of survivorship. Bare words like to Ana and Ben jointly are commonly read as a tenancy in common.

A tenancy by the entirety is a joint tenancy dressed up for a married couple. Five unities. The usual four plus a unity of marriage, so only spouses can hold it. It carries survivorship. And its special feature is protection. Neither spouse acting alone can convey, encumber, or partition the property.

In most states that recognize the estate, a creditor of only one spouse cannot seize the property to satisfy that spouse's individual debt. That shields the family home. Divorce dissolves the unity of marriage and typically converts the estate into a tenancy in common.

Here is what a provided creation statute looks like. The Franklin Estates in Land Act § 12 says a conveyance to two or more persons creates a tenancy in common, unless the instrument expressly declares a right of survivorship. And a conveyance to two persons married to each other is presumed a tenancy by the entirety.

Watch one clause flip the result. To Cara and Dev, as joint tenants with right of survivorship. Express words, so joint tenancy. To Cara and Dev, not married. Nothing express, so the default. Tenancy in common. To Cara and Dev, husband and wife. A married couple, so tenancy by the entirety. Same two grantees, three different estates.

Severance is any act that destroys one of the four unities. It converts a joint tenant's interest into a tenancy in common and kills the right of survivorship for that share. And there is a structural rule you must keep straight.

With only two joint tenants, a severance turns the whole thing into a tenancy in common. With three or more, a severance affects only the severed share. Ana, Ben and Cy hold as joint tenants, one-third each. Ana sells to Xavier. Xavier now holds a one-third interest as a tenant in common, while Ben and Cy stay joint tenants between themselves.

So if Ben dies, Cy takes Ben's share. Xavier's third is untouched.

Now what severs. A conveyance, gift, or sale of the whole interest always severs. A contract to sell severs in equity even before closing, under equitable conversion. A lease by one joint tenant is a split of authority, and the leading view is that it does not sever, because it grants only a temporary, partial interest.

A judgment lien alone generally does not sever. It severs only once the creditor completes an execution or foreclosure sale. And a mortgage depends entirely on the state's theory.

In lien-theory states, the majority, a mortgage is only a lien on the interest, so it does not sever. In title-theory states, the minority, a mortgage transfers legal title, so it does sever that joint tenant's share. Hold on to that, because it sets up the classic trap in this topic.

Bea and Cole own as joint tenants in a lien-theory state, and Bea alone mortgages her interest to a bank. No severance. If Bea then dies before the bank forecloses, her interest is extinguished at death, Cole takes the entire property by survivorship, and here is the sting. Cole takes it free of the mortgage. The interest the lien attached to has evaporated.

Flip the timing. If the bank completes its foreclosure sale before Bea dies, that sale severs, and the buyer takes Bea's share as a tenant in common with Cole. Same facts, opposite result, decided by who acts first.

Partition is the law's answer to co-owners who no longer want to be co-owners. No tenant in common and no joint tenant can be forced to stay locked in forever. Each has an absolute right to partition. To end the co-ownership and come away with a separated share or the cash equivalent.

One exception. A tenancy by the entirety cannot be partitioned. Neither spouse can force it while married, so the couple must divorce, which converts the estate first.

Courts choose between two methods. Partition in kind physically divides the land into separate parcels, and it is the traditional preference, because it keeps people on their own land. Partition by sale sells the whole property and splits the proceeds by share. A court orders a sale only where physical division is impracticable, or would substantially prejudice the owners.

Two limits. Co-owners may agree not to partition, and courts enforce that agreement so long as it is reasonable in duration and purpose. And whichever method is used, the court runs an accounting to square up the equities.

One modern overlay. Roughly half the states have adopted the Uniform Partition of Heirs Property Act. It cushions the forced-sale rule where co-owned land was inherited by relatives and held as a tenancy in common. Before ordering a sale it requires notice and an appraisal, and gives the other cotenants a right of first refusal to buy out the co-owner who wants out.

Now relations among cotenants. Because every cotenancy carries unity of possession, each cotenant may use every part of the property regardless of share size. And here is the counterintuitive flip side. A cotenant who occupies the property alone is generally not liable to the others for the rental value of that occupancy.

Living in the whole is exactly what a cotenant is entitled to do. So Ana lives in the house and Ben lives across town. Ana owes Ben nothing. Unless Ana locks Ben out.

The rule changes when the money comes from outside. A cotenant who collects rent from a third-party tenant must account to the co-owners for their proportionate share of the net amount. Same for profits taken from the land itself, by extracting timber or minerals. Money you make from your own occupancy is yours. Money a third party pays is shared.

Ouster is the wrongful exclusion of a cotenant. Changing the locks, rejecting a demand to share possession, openly claiming to be sole owner. Two consequences worth memorizing. The excluded cotenant recovers their share of the fair rental value for the period of exclusion. And ouster starts the adverse-possession clock running against a cotenant.

A cotenant's possession is otherwise presumed permissive. So one cotenant can adversely possess against another only after a clear ouster puts the co-owners on notice that the possession has turned hostile.

Last, money. When one cotenant spends on the shared property, whether they can force the others to chip in depends entirely on the type of expense. Three buckets. Taxes and mortgage payments protect everyone's title, so a cotenant who overpays may compel contribution pro rata, and may do it in a direct action without waiting for partition.

Necessary repairs are different. The majority rule allows no separate lawsuit during the cotenancy, but the cost is credited to the repairing cotenant in an accounting or at partition. And improvements earn no right of contribution at all. You improve at your own risk.

At partition the improver is credited only with the value the improvement actually added, not what it cost, and bears the loss if the change reduced the property's value.

The Franklin Partition Act § 7 is that checklist in statutory form. Nia and Omar own a duplex as tenants in common. Nia paid all the taxes and re-shingled the leaking roof. Omar rented the empty unit to a stranger and pocketed the rent, and for six months he changed the locks and kept Nia out.

Under § 7, Nia is credited for Omar's share of the taxes and the necessary roof repair. Omar is charged with Nia's share of the third-party rent, and charged the fair rental value of the six months he ousted her. Everything nets out in one final tally.

A word on authorities, because this episode named no cases, and that was deliberate. Cotenancy questions hand you a deed, or a statute, and ask what estate it created and who owes whom. Nobody is going to ask you for a case name. But this topic is starred, so the core rules come with no provided law.

If you keep only three, keep these. The four unities, because they build a joint tenancy and breaking any one of them destroys it. The survivorship presumption, which runs against you, so express words are required. And the severance triggers, because that is where the exam hides the twist.

Now the traps the examiners set. One. Assuming survivorship. Modern law presumes a tenancy in common, and the word jointly by itself usually is not enough. Two. Letting a joint tenant devise their interest by will. Survivorship beats the will, and the interest evaporates at death before probate can touch it. Three. Forgetting the three-tenant severance rule. When one of three sells, only that third converts.

Four. Mixing up the mortgage theories. Lien theory, the majority, means no severance. Title theory means severance. And in a lien-theory state, if the mortgaging joint tenant dies before foreclosure, the survivor takes the whole free of the mortgage. Five. Charging a solo occupant rent for merely living there. There is no liability absent ouster or agreement, even though third-party rents are shared.

Six. Scrambling the contribution rules. Taxes and mortgage support a direct action. Repairs are only credited later. Improvements earn no contribution at all, just a value-added credit at partition. And seven. Letting someone partition a tenancy by the entirety. Neither spouse can force it while married.

Time for the quick check, and this one comes straight from the BARGO question bank. It is a select-two, so you are picking the two topics that decide the case. Two sisters own a rental cottage as joint tenants with right of survivorship, in a lien-theory state. One sister mortgaged her interest to a bank. The other signed nothing. Before the bank took any step to foreclose, the borrowing sister died.

The bank wants to enforce its mortgage. The surviving sister says she owns the cottage free and clear. Which two topics should you research? Candidate one, severance. Candidate two, right of survivorship. Candidate three, partition. Candidate four, contribution. Pause here if you want a moment.

Severance and right of survivorship. Severance comes first. A mortgage by one joint tenant severs only in a title-theory state, where the mortgage passes legal title. These facts are lien theory, so the mortgage is merely a lien, it does not sever, and the joint tenancy survives intact.

That makes survivorship decisive. Because the estate was never severed, the borrowing sister's interest was extinguished the instant she died, and her sister took the whole cottage. The lien had nothing left to attach to. The bank takes nothing. Failing to foreclose before the death was fatal. Partition and contribution concern dividing property and sharing expenses, not this lien dispute. Every question in the bank is explained option by option like that.

Five things to take away. One. Label the estate from the granting language first. That single label decides who takes when an owner dies. Two. Tenancy in common is the default. A joint tenancy needs four unities plus express survivorship words. A tenancy by the entirety adds marriage, and takes both signatures.

Three. Severance destroys a unity and kills survivorship for that share, and with three or more joint tenants only the severed share converts. Watch a severance and a death race each other. Four. Any tenant in common or joint tenant may partition as of right, in kind by preference, by sale where division is impracticable.

Five. On money, run the checklist. Exclusive personal use owes nothing absent ouster. Third-party rents are shared. Taxes and mortgage support contribution. Repairs are credited at partition, and improvements earn only the value they actually added.

Which brings us back to Mara, who was certain the survivor takes everything. She was right about what survivorship does. She was wrong that she had any. One word missing from a deed, and half a warehouse changes hands. Next time, Landlord and Tenant.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.