LAW 515-001 – Property I

Concurrent Ownership


The common law recognized three types of concurrent ownership that have continuing relevance:

  1. Tenancy in Common

    Tenants in common share an undivided interest as co-owners. Each tenant in common has a distinct share that belongs to him. Each can use it to the same extent as if he owned it individually, although neither can take unilateral action to defeat other tenants in common's rights.

    Upon death of one of the co-owners, the interest in the property does not pass to the other co-owners but to the person named in the will of the deceased, who will then become a tenant-in-common with the surviving co-owners.

  2. Joint Tenancy

    Joint tenancy is similar to a tenancy in common in that each co-owner holds a separate and undivided right to possession, but joint tenant also have a right of survivorship. The death of one tenant will result in ownership of the land by the surviving joint tenants, passing outside probate.

    A joint tenancy must have the four unities.

    Four Unities
    1. Unity of Time

      Interest must be acquired by both tenants at the same time.

    2. Unity of Title

      The interests held by the co-owners must arise out of the same instrument.

    3. Unity of Interest

      Both tenants must have the same interest in the property.

      Both must have the same type of interest, and the interest must run for the same duration.

    4. Unity of Possession

      Both tenants must have the right to possess the whole property.

    If a unity is broken, the joint tenancy converts to a tenancy in common.

    States are split as to how a lien is handled. They are split between two theories:

    1. Lien Theory

      Under the lien theory, a mortgage only gives the mortgagee a lien on the property.

      This does not sever a joint tenancy.

    2. Title Theory

      Under the title theory, a mortgage gives title to the land to the mortgagee the moment the mortgage is made.

      For a joint tenancy, this immediately severs the right of survivorship and converts the joint tenancy to a tenancy in common.

  3. Tenancy by the Entirety

    Tenancy by the entirety is similar to joint tenancy, but it is only between married couples, and the law sees the two owners as one person.

    Tenancy by the entirety does not exist in all states and is usually only the default form of ownership for married couples in regards to real estate.

    Tenancy by the entirety has the four unities of joint tenancy, in addition to the fifth unity of marriage.

If land is devised to multiple people without specifying what type of concurrent ownership, tenancy in common is assumed in almost all states.

Each co-tenant has four rights concerning the property:

  1. Possession
  2. Partition

    Partition is when a cotenant asks the court to terminate the cotenancy and to divide the cotenancy property, either in kind (physical division of the property) or by sale (with division of the proceeds).

    There is a presumption that partition in kind should be made unless great prejudice is shown. Schmidt v. Wittinger.

  3. Accounting

    Accounting is an action in which one cotenant seeks to compel another cotenant to share benefits obtained from the leasing, exploitation, or use of the property.

  4. Contribution

    Contribution is an action in which one cotenant seeks reimbursement from the other cotenant for his share of necessary expenses that the complaining cotenant has paid.

Some types of estates are held exclusively by spouses:

Community Property

Community property is a type of estate some states have created that gives spouses concurrent ownership. Neither spouse can unilaterally convey his share to someone other than his spouse. Neither spouse has a right of survivorship in community property.

Equitable Distribution

Most states have statues, under which property acquired during marriage is divided fairly at divorce.

Obsolete Estates
Jure Uxoris

Jure uxoris no longer exists. It gave a husband an estate jure uxoris in all of the land by his wife at the time of marriage.

Curtesy

Curtesy was a common law estate that gave a husband all of the land owned by his wife at any time during their marriage upon her death.

Dower

Dower gave a widow an estate of dower for life in all land her husband owned an estate of inheritance at any time during the marriage.