Ownership of real property - Cotenancy

Learning Outcomes

After reading this article, you will be able to identify and distinguish the main forms of concurrent ownership of real property, explain the rights and obligations of cotenants, and analyze how partition and related remedies operate. You will be prepared to apply these principles to MBE-style questions, including scenarios involving use, rent, expenses, improvements, and the termination of cotenancy.

MBE Syllabus

For MBE, you are required to understand the rules governing concurrent ownership of real property. This includes the creation, characteristics, and termination of cotenancies, as well as the rights and liabilities of co-owners. You should be able to:

  • Distinguish between tenancy in common, joint tenancy, and tenancy by the entirety.
  • Identify the requirements for creation and severance of each form of cotenancy.
  • Analyze the rights of possession, use, rent, and profits among cotenants.
  • Explain the duties regarding repairs, taxes, mortgages, and improvements.
  • Understand remedies available to cotenants, including partition by sale or in kind.
  • Recognize the effect of ouster and the rules for adverse possession between cotenants.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following is a defining feature of a joint tenancy?
    1. Right of survivorship
    2. Partition by sale is prohibited
    3. Co-owners must be married
    4. Each owner may only transfer their interest by will
  2. If one cotenant pays the entire property tax bill on a property held as tenants in common, what is the general rule regarding contribution?
    1. The paying cotenant cannot recover from the others
    2. The paying cotenant may seek contribution from the others
    3. The paying cotenant is entitled to the entire property
    4. The paying cotenant must partition the property
  3. What remedy is available to a cotenant who is denied access to the property by another cotenant?
    1. Ouster and action for rent or partition
    2. Only ejectment
    3. Only damages for waste
    4. None; cotenants cannot sue each other

Introduction

Real property can be owned by more than one person at the same time. This is known as concurrent ownership or cotenancy. Understanding the types of cotenancy, the rights and obligations of co-owners, and the remedies available when disputes arise is essential for the MBE.

Types of Cotenancy

There are three principal forms of concurrent ownership:

  1. Tenancy in Common
  2. Joint Tenancy
  3. Tenancy by the Entirety

Each form has distinct features, especially regarding survivorship, transferability, and severance.

Key Term: Tenancy in Common A form of concurrent ownership where each co-owner holds an undivided, fractional interest in the property, with no right of survivorship. Each interest is freely transferable and inheritable.

Key Term: Joint Tenancy A form of concurrent ownership where co-owners hold equal, undivided interests with a right of survivorship. When one joint tenant dies, their interest passes automatically to the surviving joint tenant(s).

Key Term: Tenancy by the Entirety A form of concurrent ownership available only to married couples, featuring a right of survivorship and limited ability for one spouse to transfer or encumber the property without the other's consent.

Creation and Severance

Tenancy in Common is the default form if the conveyance is ambiguous or silent. Joint Tenancy requires clear intent and the "four unities": time, title, interest, and possession. Severance of a joint tenancy (e.g., by sale or mortgage in some states) converts it to a tenancy in common.

Tenancy by the Entirety arises only if the parties are married and the deed so specifies or the jurisdiction presumes it for married grantees. Divorce or mutual agreement severs the tenancy by the entirety.

Rights of Cotenants

All cotenants, regardless of form, have equal rights to possess and use the entire property, regardless of their fractional share.

Possession and Use

Each cotenant may occupy and use the whole property. If one cotenant excludes another, this is called ouster.

Key Term: Ouster The wrongful exclusion of a cotenant from possession of the property by another cotenant, giving rise to a claim for rent or partition.

Rent and Profits

A cotenant in possession does not owe rent to the others unless there is ouster or an agreement. Rents from third parties must be shared proportionally.

Expenses and Repairs

Cotenants must share necessary expenses, such as taxes, mortgage payments, and necessary repairs, in proportion to their ownership interests. There is generally no right to contribution for improvements, but the improving cotenant may receive credit or bear loss upon partition.

Improvements

A cotenant who makes improvements at their own expense is not entitled to contribution but may be compensated or charged for the value change at partition.

Waste

A cotenant must not commit waste—acts that permanently reduce the value of the property.

Partition

Any cotenant (except tenants by the entirety) may seek partition, either in kind (physical division) or by sale, with proceeds divided according to ownership shares.

Key Term: Partition The legal process by which a court divides property among cotenants, either by physical division (partition in kind) or by sale and division of proceeds (partition by sale).

Worked Example 1.1

Two siblings, A and B, own a house as joint tenants. A sells her interest to C. What is the resulting form of ownership?

Answer: The sale severs the joint tenancy as to A's share. C and B now own the property as tenants in common; B's right of survivorship is lost as to C's share.

Worked Example 1.2

X, Y, and Z own land as tenants in common. X pays the entire property tax bill. Can X recover from Y and Z?

Answer: Yes. X may seek contribution from Y and Z for their proportional shares of the taxes, as each cotenant is responsible for their share of necessary expenses.

Worked Example 1.3

D and E are cotenants. D builds a swimming pool without E's consent. At partition, what happens?

Answer: D is not entitled to contribution for the cost of the improvement, but at partition, D may receive credit for any increase in value attributable to the pool, or bear the loss if the improvement decreased the property's value.

Exam Warning

On the MBE, do not confuse the right to partition (available to tenants in common and joint tenants) with the right of survivorship (unique to joint tenancy and tenancy by the entirety). Also, remember that ouster requires actual exclusion, not mere exclusive possession.

Revision Tip

If a cotenant is excluded from possession, always consider a claim for rent or partition. If a cotenant pays more than their share of taxes or mortgage, contribution is generally available.

Key Point Checklist

This article has covered the following key knowledge points:

  • There are three main forms of cotenancy: tenancy in common, joint tenancy, and tenancy by the entirety.
  • Tenancy in common is the default; joint tenancy requires clear intent and the four unities.
  • Joint tenancy features a right of survivorship; tenancy by the entirety is for married couples only.
  • Each cotenant has equal rights to possess and use the whole property.
  • Ouster occurs when a cotenant is wrongfully excluded and may give rise to rent or partition.
  • Cotenants must share necessary expenses; contribution is available for taxes, mortgage, and repairs.
  • Improvements do not entitle a cotenant to contribution but may be considered at partition.
  • Any cotenant (except tenants by the entirety) may seek partition by sale or in kind.
  • Partition divides property or proceeds according to ownership shares.

Key Terms and Concepts

  • Tenancy in Common
  • Joint Tenancy
  • Tenancy by the Entirety
  • Ouster
  • Partition
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