The distinguishing feature of a joint tenancy is the right of survivorship. When property is held by three or more joint tenants, one joint tenant’s conveyance destroys the joint tenancy only as to that interest. The remaining joint tenants continue to hold in joint tenancy as between themselves, and the grantee holds his interest as a tenant in common with them. When A sold her interest to E, that 1/4 interest was severed and thus converted into a tenancy in common, which E continues to hold. Thus, E gets A’s 1/4 share. When one joint tenant dies, the property is freed from her interest, and the survivors retain an undivided right in the property. Since B’s interest was extinguished on her death, B’s devisees do not take B’s interest; the surviving joint tenants hold free of it. This leaves C and D as joint tenants with right of survivorship, together owning a 3/4 interest in the land. A joint tenancy is terminated by a suit for partition. When the partition sale was ordered, this joint tenancy was converted into a tenancy in common, and split equally between C and D. Thus, C and D each will receive 3/8 of the partition proceeds.
The proceeds would not be divided so that C and D get 1/2 each. A severed her interest in the joint tenancy when she sold her interest to E. However, as is explained above, E now holds that interest as a tenant in common. Thus, E is entitled to 1/4 of the partition proceeds.
The proceeds would not be divided so that C, D, and E get 1/3 each. This would be the case if E took A’s share as a joint tenant, but as is explained above, E took as a tenant in common. Thus, E’s share does not increase on B’s death, because he does not have the benefit of the right of survivorship.
The proceeds would not be divided so that F and G get 1/8 each, and C, D, and E get 1/4 each. F and G do not take B’s share on her death. When a joint tenant dies, her share is divided among the surviving joint tenants. This is the essence of the right of survivorship. Moreover, a devise, unlike an inter vivos conveyance, will not sever a joint tenant’s interest. Thus, B’s devisees take nothing, and C, D, and E take as discussed above.
I. ESTATES IN LAND
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G. CONCURRENT ESTATES
Any of the estates in land previously discussed can be held concurrently by several persons. These persons all have the right to the enjoyment and possession of the land at the same time. Three of the chief forms of concurrent ownership in land are discussed here: joint tenancy, tenancy by the entirety, and tenancy in common.
1. Joint Tenancy
A joint tenancy can be created between two or more co-tenants. Its distinguishing feature is the right of survivorship. Conceptually, when one joint tenant dies, the property is freed from his concurrent interest; the survivor or survivors retain an undivided right in the property, which is no longer subject to the interest of the deceased co-tenant. The survivors do not succeed to the decedent’s interest; they hold free of it.
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A joint tenancy can be terminated by a suit for partition, which can be brought by any joint tenant. It may also be terminated by various acts by any joint tenant.
1) Inter Vivos Conveyance by One Joint Tenant
An inter vivos conveyance by one joint tenant of her undivided interest destroys the joint tenancy so that the transferee takes the interest as a tenant in common and not as a joint tenant. This rule applies to both voluntary and involuntary conveyances (even secret conveyances).
a) When More than Two Joint Tenants
When property is held in joint tenancy by three or more joint tenants, a conveyance by one of them destroys the joint tenancy only as to the conveyor’s interest. The other joint tenants continue to hold in joint tenancy as between themselves, while the grantee holds her interest as a tenant in common with them.
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2) Contract to Convey by One Joint Tenant
In most states, a severance also results where one joint tenant executes a valid contract to convey her interest to another, even though no actual transfer of title has yet been made. The contract to convey is enforceable in equity, and hence is treated as an effective transfer of an equitable interest. Thus, if the vendor dies before the title is transferred, the purchaser is entitled to a deed from the vendor’s estate and becomes a tenant in common with the original joint tenant or tenants.
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3) Testamentary Disposition by One Joint Tenant Has No Effect
A joint tenancy is not terminated where a joint tenant executes a will devising her interest to another or dies with such a will in effect. The reason is that a will is ambulatory (effective only at death) and hence is inoperative as to joint tenancy property, because at the instant of death the decedent’s rights in the property evaporate. (The result would be contra if all joint tenants had agreed that the decedent could devise her interest; but in such a case, the agreement itself would cause the severance.)
a) Compare—“Secret” Deeds
As indicated above, an inter vivos conveyance severs a joint tenancy. This is true even though the deed is kept “secret” and the interest transferred is to take effect only upon the death of the grantor. However, if the grantee does not know about the deed, the grantee’s acceptance after the death of the grantor does not relate back to defeat the right of survivorship.
4) Effect of One Joint Tenant’s Murdering Another
Some states have passed statutes under which the felonious and intentional killing of one joint tenant by another joint tenant operates as a severance. In other states, the surviving joint tenant holds the ill-gained portion on a constructive trust for the decedent’s estate. Thus, the homicidal survivor keeps her original share but does not profit from her felony.
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3. Tenancy in Common
A tenancy in common is a concurrent estate with no right of survivorship. Each owner has a distinct undivided interest in the property. This interest is freely alienable by inter vivos and testamentary transfer, is inheritable, and is subject to claims of the tenant’s creditors. The only “unity” involved is possession: Each tenant is entitled to possession of the whole estate. Today, by statute, multiple grantees are presumed to take as tenants in common. The same is true where multiple transferees take by descent.
4. Incidents of Co-Ownership
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e. Remedy of Partition
A joint tenant or tenant in common has a right to judicial partition, either in kind (division of the tract into parcels) or by sale and division of the proceeds(in accordance with the ownership interests as modified by permitted recoupments for improvements, repairs, taxes, and the like). Although partition in kind is generally preferred, partition by sale and division of the proceeds is permitted when a fair and equitable physical division of the property cannot be made. [Nordhausen v. Christner, 338 N.W.2d 754 (Neb. 1983)]
Examples: 1) A and B own a single-family home as joint tenants. A brings an appropriate action to partition the land. Because physical division of the home is not feasible, the court will order a sale of the home and division of the proceeds equally between A and B.
2) A owns a three-fourths interest and B owns a one-fourth interest in a four-acre undeveloped parcel of land as tenants in common. The applicable zoning ordinance requires that a buildable lot contain at least two acres. A seeks to partition the land into a three-acre lot for himself and a one-acre lot for B. B argues that the land should be sold and the proceeds divided between A and B according to their respective shares. B will prevail, because the zoning ordinance makes it impossible to divide the land fairly.