Facts
- In 1990, cousins Richard F. Reicherter and Douglas M. Reicherter acquired an 80-acre farm in Marshall County, Kansas, as joint tenants with right of survivorship.
- On December 18, 2009, Richard signed a quitclaim deed conveying his joint-tenancy interest to himself, intending to sever the joint tenancy and hold as a tenant in common.
- After signing, Richard gave the deed to his attorney, Rodney Symmonds, for recording.
- On December 22, 2009, Symmonds mailed the deed and recording fee to the Marshall County Register of Deeds.
- Richard died on December 28, 2009.
- The deed was recorded on December 29, 2009.
- Douglas did not learn of the self-conveyance until after Richard’s death.
- Douglas and Richard had no agreement requiring that the joint tenancy be kept in place or limiting either cousin’s ability to transfer his own interest.
- Barbara J. McCauley was appointed executor of Richard’s estate.
- Douglas and his wife, Carolyn S. Reicherter (individually and as trustees of their trust), sued McCauley to quiet title, claiming Douglas became sole owner by survivorship.
- McCauley asserted that Richard’s deed severed the joint tenancy before his death, leaving the estate with a one-half interest, and she sought partition.
- Both sides moved for summary judgment; the district court granted summary judgment for McCauley, concluding (1) Richard’s self-conveyance showed intent to sever and create a tenancy in common and (2) severance occurred when Richard delivered the deed to his attorney for filing.
- Douglas appealed, arguing the self-conveyance did not sever because the deed was recorded after Richard’s death and Douglas had no notice before death.
Issues
- Can a joint tenant unilaterally sever a joint tenancy by executing a quitclaim deed conveying his interest to himself as a tenant in common?
- If so, is severance effective when the deed is delivered to the grantor’s attorney for recording during the grantor’s lifetime, even if the deed is recorded after the grantor’s death and the other joint tenant had no notice?
Decision
- The Kansas Court of Appeals affirmed the district court’s summary judgment in favor of McCauley, executor of Richard’s estate.
- A joint tenant may sever a joint tenancy by conveying his interest, and a self-directed quitclaim deed can accomplish severance when it clearly shows intent to create a tenancy in common.
- The transfer was effective upon delivery of the deed to Richard’s lawyer for recording during Richard’s lifetime.
- Recording after Richard’s death did not defeat the earlier effective delivery, and Douglas’s lack of notice did not preserve survivorship.
Legal Principles
- Kansas law presumes a tenancy in common unless the creating instrument unequivocally establishes a joint tenancy with rights of survivorship. (K.S.A. 58-501)
- A joint tenant may unilaterally sever a joint tenancy and create a tenancy in common by conveying his or her interest.
- A conveyance by deed requires effective delivery during the grantor’s lifetime.
- Delivery may be satisfied when the grantor places the deed with his attorney for recording, with the intent that the conveyance take effect.
- Upon effective delivery during life, a quitclaim deed by a joint tenant to himself or herself “as a tenant in common” severs the joint tenancy and ends survivorship.
- Recording is not required for validity between the parties to the deed; an unrecorded deed can be effective between them.
- Absent an agreement restricting severance, notice to the other joint tenant is not a prerequisite to unilateral severance.
Conclusion
The court held that Richard’s quitclaim deed to himself, intended to convert his joint-tenancy interest into a tenancy in common, severed the joint tenancy when he delivered the deed to his attorney for recording before his death; therefore, Douglas did not take the entire farm by survivorship, and Richard’s estate retained a one-half tenancy-in-common interest.