Ownership of real property - Types: tenancy in common and joint tenancy

Learning Outcomes

After reading this article, you will be able to distinguish between tenancy in common and joint tenancy, identify their key features, explain the right of survivorship, and apply the rules for creation, severance, and transfer of interests. You will also be able to answer MBE-style questions on these forms of concurrent ownership with confidence.

MBE Syllabus

For MBE, you are required to understand the main types of concurrent ownership of real property and their legal consequences. This article covers:

  • The distinction between tenancy in common and joint tenancy.
  • The right of survivorship and its effect on succession.
  • The four elements required for joint tenancy.
  • Methods for creating and severing joint tenancy.
  • The rules for transfer and inheritance of interests in both types.

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 sever a joint tenancy?
    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 leases their interest for a year.
  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.

Introduction

Concurrent ownership allows two or more people to hold title to the same parcel of real property at the same time. The two main types tested on the MBE are tenancy in common and joint tenancy. Understanding their differences, especially the right of survivorship and the rules for severance, is essential for MBE success.

Tenancy in Common

A tenancy in common is the default form of concurrent ownership. Each co-owner (called a tenant in common) holds an undivided, fractional interest in the property. These interests may be equal or unequal, and each tenant in common may transfer their share during life or at death.

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 and inheritable.

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 feature makes joint tenancy a popular choice for co-owners who want their interest to pass outside of probate.

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

The Four Elements

To create a joint tenancy, four elements must be present: time, title, interest, and possession. All joint tenants must acquire their interests at the same time, by the same instrument, have equal interests, and have equal rights to possess the whole property.

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

Creation of Joint Tenancy

Joint tenancy must be expressly stated in the deed or will, using clear language such as “as joint tenants with right of survivorship.” If the language is ambiguous, courts presume a tenancy in common.

Severance of Joint Tenancy

A joint tenancy can be severed, converting it into a tenancy in common. Severance occurs if any of the four elements 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 elements, resulting in a tenancy in common.

Transfer and Inheritance

Tenants in common may transfer their interest during life or by will. Joint tenants may transfer their interest during life, but cannot transfer by will—upon death, their interest passes to the surviving joint tenant(s).

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.

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.

Revision Tip

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

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, the interest passes 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.
  • Tenants in common may transfer or devise their interest freely; joint tenants cannot devise their interest by will.

Key Terms and Concepts

  • Tenancy in Common
  • Joint Tenancy
  • Right of Survivorship
  • Four Elements
  • Severance
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