Ownership of real property - Types: tenancy in common and jo...

Learning Outcomes

This article explains ownership of real property through tenancy in common and joint tenancy, including:

• Recognizing fact patterns that distinguish tenancy in common from joint tenancy, including the form of the deed, unequal interests, and default presumptions in favor of tenancy in common.
• Understanding the right of survivorship, its effect on wills, intestacy, and creditor claims, and how survivorship interacts with liens, mortgages, and slayer statutes.
• Identifying and applying the four elements of joint tenancy—time, title, interest, and possession—and spotting MBE issues when any element is missing at creation or destroyed later.
• Tracing how joint tenancies are created by deed or will, how they are severed by sale, contract, mortgage, lease, judgment, or homicide, and when only a partial severance occurs.
• Evaluating how concurrent estates affect transfer, inheritance, partition, and co‑tenant remedies for ouster, waste, contribution, accounting, and rent from third parties.
• Comparing the day‑to‑day rights and obligations of co‑tenants, including possession, profits, carrying costs, necessary repairs, improvements, and the limits on adverse possession between co‑tenants.
• Applying structured reasoning steps to MBE-style multiple‑choice questions involving ambiguous grants, sloppy survivorship language, creditor actions, and the timing of severance events.

MBE Syllabus

For the MBE, you are required to understand concurrent ownership of real property with a focus on the following syllabus points:

• Types of concurrent estates, especially tenancy in common and joint tenancy
• Rights and duties of co‑tenants, including possession, profits, and contribution
• The right of survivorship and its effect on wills, intestacy, and creditors
• The four conditions for joint tenancy and presumptions in favor of tenancy in common
• Methods of creating and severing joint tenancies, including partial severance
• Partition actions and the effect of conveyances, mortgages, and judgments

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 joint tenancy?
   1. Each co-owner may freely devise their interest by will.
   2. There is a right of survivorship.
   3. Each co-owner must have an unequal share.
   4. The interest automatically becomes a tenancy in common upon death.
2. Which of the following will always sever a joint tenancy (at least as to one tenant’s share) in every jurisdiction?
   1. One joint tenant sells their interest to a third party.
   2. One joint tenant dies.
   3. One joint tenant marries.
   4. One joint tenant executes a one‑year lease of their interest.
3. In a tenancy in common, which statement is correct?
   1. All co-owners must acquire their interests at the same time.
   2. There is a right of survivorship.
   3. Each co-owner can transfer their interest without the others’ consent.
   4. Each co-owner must have an equal share.
4. In a lien‑theory state, which event is most likely to sever a joint tenancy?
   1. One joint tenant grants a mortgage on their share.
   2. One joint tenant unilaterally occupies the whole property.
   3. One joint tenant conveys their share by deed to a third party.
   4. One joint tenant makes a will purporting to leave their share to X.
5. Three friends hold title “to A, B, and C as joint tenants with right of survivorship.” A later conveys her interest to D. Which is the correct result?
   1. The joint tenancy is destroyed; D, B, and C are tenants in common.
   2. B and C remain joint tenants as to two‑thirds; D is a tenant in common as to one‑third.
   3. D becomes a joint tenant with B and C.
   4. Only C benefits from survivorship; B and D are tenants in common.

Introduction

Concurrent ownership allows two or more people to hold title to the same parcel of real property at the same time. On the MBE, you must be able to distinguish the two main forms:

• Tenancy in common - Joint tenancy with right of survivorship A third form, tenancy by the entirety, exists in many states for married couples but is usually tested separately. The examiners frequently build questions around subtle differences in survivorship, severance, and the consequences of inter vivos transfers.

Key Term: Concurrent Ownership
A situation in which two or more persons simultaneously hold interests in the same real property, each with some right to possess the whole.

At a high level:

• Tenancy in common (TIC) is the default form of concurrent ownership. There is no right of survivorship.
• Joint tenancy (JT) requires special creation formalities and is characterized by the right of survivorship.

Tenancy in Common

A tenancy in common is the default form of concurrent ownership. Unless the conveyance clearly specifies otherwise, most jurisdictions presume a tenancy in common.

Each co-owner (called a tenant in common) holds an undivided, fractional interest in the property. These interests may be equal or unequal, but each tenant in common has the right to possess the entire parcel, not just a physical slice.

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

Key features:

• Separate but undivided interests
  • Shares may be equal (50/50) or unequal (70/30, 10/20/70, etc.).
  • Regardless of percentage, each tenant in common can use and possess the whole property.
• No right of survivorship
  • When a tenant in common dies, their share passes by will or intestacy to their estate or heirs, not automatically to the other co-tenants.
• Free transferability
  • A tenant in common can sell, mortgage, or otherwise convey their share without the consent of co-tenants.
  • The transferee steps into the tenant’s shoes as a new tenant in common.

Shared rights and duties of tenants in common

Many co-tenant rules apply equally to tenancy in common and joint tenancy. For the MBE, keep the following doctrines in mind:

• Possession
  • Every co-tenant has the right to possess and enjoy the entire property.
  • Mere exclusive occupation by one co-tenant is not wrongful if other co‑tenants are not excluded.

Key Term: Ouster
Wrongful exclusion of a co-tenant from possession of the property, typically by refusing access or denying the other’s co‑ownership rights.

If one co‑tenant wrongfully excludes another (ouster), the excluded co‑tenant can:

• Sue for ejectment (to regain possession), and/or

• Demand an accounting of fair rental value for the period of ouster.

• Rent and profits from third parties

  • If a co‑tenant leases the property to a third party, the rent received is shared proportionately among all co‑tenants, after deducting reasonable expenses.

• Carrying costs and necessary repairs

  • A co‑tenant who pays more than their share of necessary costs (property taxes, mortgage interest, necessary repairs) usually has a right of contribution from the others.
  • Improvements: a co‑tenant who makes improvements cannot compel contribution, but on partition may receive a credit (or bear a charge) for the effect on value.

• Waste

  • As in other estates, co‑tenants may not commit waste (voluntary, permissive, or ameliorative) that substantially harms the property or the other co‑tenants’ interests.

Key Term: Partition
A judicial or voluntary division of concurrently owned property, either by physically splitting the land (partition in kind) or by selling it and dividing the proceeds (partition by sale).

Any tenant in common has a unilateral right to seek partition, which terminates the co‑tenancy.

Joint Tenancy

Joint tenancy is distinguished by the right of survivorship: when one joint tenant dies, their interest passes automatically to the surviving joint tenant(s). This happens outside probate and cannot be defeated by will.

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

Key Term: Right of Survivorship
The feature of joint tenancy under which a deceased co-owner’s interest passes automatically to the surviving joint tenant(s), not by will or intestacy.

Consequences for exam questions:

• A will that purports to leave “my joint tenancy share to X” is ineffective; at death, the share has already passed to the surviving joint tenants.
• Creditors of a deceased joint tenant generally cannot reach the property once the right of survivorship operates (subject to prior liens and state variations).

The Four Conditions (Four Elements)

Traditionally, to create a joint tenancy, four conditions must be present: time, title, interest, and possession. Many outlines call these the “four joint tenancy conditions”; your materials here refer to them as the “four elements.”

Key Term: Four Elements
The requirements for joint tenancy: elements of time, title, interest, and possession. All must be satisfied at creation.

Key Term: Traditional Four Conditions
The same four requirements—time, title, interest, and possession—viewed as a set of concurrent conditions that must coexist for a joint tenancy to arise and continue.

• Time – All joint tenants must receive their interests at the same time.
• Title – All must acquire title by the same instrument (deed, will, or same adverse possession event).
• Interest – All must have equal shares of the same type and duration (e.g., equal fee simple interests).
• Possession – Each has an equal right to possess the whole property.

If any condition is missing at the outset, the estate created is not a joint tenancy (usually it is a tenancy in common). If a condition is later destroyed, the joint tenancy is severed as to the affected share.

Creation of Joint Tenancy

Joint tenancy must be expressly stated in the deed or will, using clear language such as “to A and B as joint tenants with right of survivorship” (or similar).

Courts strongly presume a tenancy in common unless survivorship is clearly expressed.

Common creation points for the MBE:

• A grant “to A and B” → tenancy in common by default.
• A grant “to A and B as joint tenants with right of survivorship and not as tenants in common” → joint tenancy, assuming the four conditions are satisfied.
• A grant “to A and B jointly” or “to A and B” without mention of survivorship is generally not enough; most courts still presume tenancy in common.

Note: Modern law allows creation of a joint tenancy by deed or will, and many jurisdictions allow a single owner to create a joint tenancy with themselves and another by a direct conveyance (without needing a “straw” person).

Severance of Joint Tenancy

A joint tenancy can be severed, converting the affected share into a tenancy in common. Severance occurs if any of the four conditions is destroyed, most commonly by the sale or transfer of a joint tenant’s interest.

Key Term: Severance
The act or event that ends a joint tenancy, usually by destroying one of the four conditions, resulting in a tenancy in common as to the severed share.

Core severance rules:

• Inter vivos conveyance

  • A joint tenant’s voluntary conveyance of their interest to a third party severs the joint tenancy as to that share.
  • The transferee becomes a tenant in common with the remaining joint tenants.
  • If there were three or more joint tenants, the others remain joint tenants with each other as to their combined shares.

• Contracts to convey

  • Under the doctrine of equitable conversion (majority rule), an enforceable contract to sell a joint tenant’s interest may be treated as severing the joint tenancy at contract time, because it changes the nature of the interest (from land to a contract right to money).
  • Some jurisdictions require actual closing to sever; on the MBE, look for explicit facts or answer choices referencing equitable conversion.

• Mortgages

  • Lien theory (majority) – A mortgage is treated as a lien only; it does not sever the joint tenancy by itself. If the mortgaging joint tenant dies first, the surviving joint tenant takes free of the mortgage (though some states protect the lender).
  • Title theory (minority) – A mortgage transfers title; granting a mortgage does sever the joint tenancy as to that tenant’s share.
  • The exam often tells you whether the jurisdiction follows lien or title theory.

• Leases and judgment liens

  • A lease by one joint tenant may or may not sever the joint tenancy; jurisdictions are split. On the MBE, unless the facts say so, treat the lease as a temporary transfer that does not clearly sever.
  • A judgment lien attached to one joint tenant’s interest does not itself sever; the execution sale generally does. If the joint tenant dies before execution in a lien‑theory state, the lien may be lost because their interest disappears by survivorship.

• Mutual agreement or partition

  • Joint tenants can agree to terminate the joint tenancy or seek partition. Judicial partition will normally result in separate ownership (in severalty) or in tenants in common.

• Homicide between joint tenants

  • Many states apply a “slayer statute” or constructive trust when one joint tenant murders another: the killer is prevented from benefiting from survivorship; the joint tenancy is effectively severed.

Exam Tip: On the MBE, sale or transfer by one joint tenant is the clearest severance event. Always ask: “Has one of the conditions (especially title or interest) been destroyed?”

Transfer and Inheritance

Tenants in common and joint tenants share many day‑to‑day rights, but differ sharply at death.

• Tenancy in common

  • Inter vivos: freely transferable (sale, gift, mortgage) without consent.
  • At death: interest passes by will or intestacy to the decedent’s estate/heirs.

• Joint tenancy

  • Inter vivos: a joint tenant can convey their share, but doing so severs the joint tenancy as to that share.
  • At death: interest passes by survivorship to the other joint tenants; no testamentary power over the share.
  • Creditors: a creditor who has attached one joint tenant’s interest must typically execute before that tenant dies, or risk losing the lien when survivorship operates.

Worked Example 1.1

A, B, and C own Blackacre as joint tenants. A sells her interest to D. What is the resulting ownership structure?

Answer:
The sale severs the joint tenancy as to A’s share. D and the remaining joint tenants now hold as follows: D is a tenant in common with B and C, who remain joint tenants with each other as to the remaining two‑thirds.

Worked Example 1.2

X and Y own property as tenants in common, each with a 50% interest. X dies, leaving a will that devises all property to Z. Who owns the property now?

Answer:
Z and Y each own a 50% undivided interest as tenants in common. X’s share passed by will to Z; there is no right of survivorship in a tenancy in common.

Worked Example 1.3

O conveys “to A and B as joint tenants with right of survivorship.” Later, A conveys her interest to C. Then B dies intestate, leaving H as their sole heir. Who owns Blackacre?

Answer:
A’s deed to C severed the joint tenancy as to A’s share. From that moment, C and B were tenants in common (each with a 50% undivided interest). When B later died, B’s 50% interest passed by intestacy to H. Result: C and H now own Blackacre as tenants in common, each with a 50% undivided interest; no survivorship operates because the joint tenancy had already been severed.

Worked Example 1.4

O conveys “to A and B as joint tenants with right of survivorship.” In a lien‑theory state, A grants a mortgage on her interest to Bank. Shortly afterward, A dies; B survives. What is the status of the mortgage and title?

Answer:
In a lien‑theory state, A’s mortgage does not sever the joint tenancy. When A dies, B takes full title by right of survivorship. Because the mortgagor’s interest has been extinguished by death, the Bank’s lien is generally lost as to the real estate (subject to state variations). On MBE facts, the usual result is that B owns Blackacre free of A’s mortgage.

Worked Example 1.5

D and E own Whiteacre as tenants in common, D with 30% and E with 70%. D moves out and E remains in sole possession for 15 years, paying all taxes. D never requests access or rent. E then seeks to quiet title by adverse possession. Is E likely to succeed?

Answer:
Generally no. As between co‑tenants, exclusive possession alone—even for the statutory period—does not constitute adverse possession absent an ouster (clear notice that the possessor is claiming exclusively against the other). Because E merely occupied the whole and paid taxes, without excluding D or clearly repudiating D’s rights, E has not adversely possessed D’s 30% share.

Exam Warning

On the MBE, watch for facts that destroy one of the four elements (especially sale or transfer by a joint tenant). This severs the joint tenancy and creates a tenancy in common as to the transferred share.

Additional common traps:

• A will never severs a joint tenancy by itself; it simply has no effect on the joint tenancy share.
• Mortgages: always determine whether the jurisdiction follows lien or title theory before deciding if a mortgage severs.
• Multiple joint tenants: a conveyance by one tenant only severs their share; the others may remain joint tenants among themselves.

Revision Tip

Remember: If the deed is silent or ambiguous, courts presume a tenancy in common, not a joint tenancy.

Also remember:

• Default = tenancy in common.
• Survivorship language + four conditions = joint tenancy.
• Any inter vivos conveyance by a joint tenant = severance as to that share.

Key Point Checklist

This article has covered the following key knowledge points:

• Tenancy in common is the default form of concurrent ownership, with no right of survivorship.
• Joint tenancy features the right of survivorship; upon death, a joint tenant’s interest passes automatically to surviving joint tenant(s).
• Joint tenancy requires the four elements: time, title, interest, and possession.
• Severance of joint tenancy (e.g., by sale) converts the affected share to a tenancy in common; remaining joint tenants may still hold jointly.
• In lien‑theory states, a mortgage by one joint tenant does not sever the joint tenancy; in title‑theory states, it usually does.
• Co‑tenants (whether TIC or JT) each have the right to possess the whole property and may seek partition.
• Ouster requires wrongful exclusion of a co‑tenant and can give rise to an accounting for fair rental value.
• Tenants in common may transfer or devise their interest freely; joint tenants cannot devise their joint tenancy share by will.

Key Terms and Concepts

• Concurrent Ownership
• Tenancy in Common
• Joint Tenancy
• Right of Survivorship
• Four Elements
• Traditional Four Conditions
• Severance
• Ouster
• Partition