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Encyclopedia > Right of survivorship

A concurrent estate or co-tenancy is a concept in property law, particularly derived from the common law of real property, which describes the various ways in which property can be owned by more than one person at a given time. The parties who own property jointly are referred to as co-tenants or joint tenants. Most common-law jurisdictions recognize three kinds of concurrent estate: tenancy in common, joint tenancy with right of survivorship, and tenancy by the entirety. Many jurisdictions simply refer to a joint tenancy with right of survivorship as a joint tenancy, but a few U.S. States treat the phrase joint tenancy as synonymous with a tenancy in common. Property law is the law that governs the various forms of ownership in real property (land as distinct from personal or moveable possessions) and in personal property, within the common law legal system. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Real property is a type of property differentiated from personal property. ... A U.S. state is any one of the 50 states which have membership of the federation known as the United States of America (USA or U.S.). The separate state governments and the U.S. federal government share sovereignty. ...


The type of ownership determines the rights of the parties to convey their interest in the property to others, to will the property to their heirs, or to sever their joint ownership of the property. Just as each of these affords a different set of rights and responsibilities to the joint owners of property, each requires a different set of conditions in order to exist. In the law, a will or testament is a documentary instrument by which a person (the testator) regulates the rights of others over the testators property or family after their death. ... For other uses, see inheritance (disambiguation). ...

Contents


Rights and duties shared by all cotenants

Co-tenants, irrespective of the type of tenancy, share certain rights to the property:

  1. Each tenant has an unrestricted right of access to the property. Where one co-tenant wrongfully excludes another from making use of the property, the excluded co-tenent can bring a cause of action for ouster, and may receive the fair rental value of the property for the time that he was dispossessed.
  2. Each tenant has a right to an accounting of profits made from the property. If the property generates income such as rent, each tenant is entitled to a proportion of that income.
  3. Each tenant has a right of contribution for the costs of owning the property. Co-tenants can be forced to contribute to the payment of expenses such as repairs, property taxes, and mortgages on the entire property.

Co-tenants have no obligation to contribute to any costs of improving the property. Furthermore, each co-tenant can independantly encumber their own share in the property by taking out a mortgage on that share; other co-tenants have no obligation to help pay a mortgage that only runs to another tenant's share of the property, and the mortgagee can only foreclose on that share. A mortgage (Law French for dead pledge) is a device used to create a lien on real estate by contract. ...


Finally, co-tenants owe one another a duty of fair dealing. Because of this, any co-tenant who acquires a mortgage claim against the property must give his co-tenants a reasonable opportunity to purchase proportionate shares in that claim.


Tenancy in common

Tenancy in common is the default form of concurrent estate, in which each owner, referred to as a tenant in common, is regarded by the law as each owning separate and distinct shares which may differ in size. This form of ownership is common where the co-owners are not married or have contributed different amounts to the acquisition of the property. Also, if joint owners had attempted to use another form of joint ownership such as a joint tenancy with right of survivorship or a tenancy by the entirety, and the effort was for some reason invalid, the joint owners would then be tenants in common. If conclusive evidence is not available of the desire to create a tenancy with rights of survivorship or a tenancy by the entirety, courts will determine that a tenancy in common has in fact been created. A court is an official, public forum which a public power establishes by lawful authority to adjudicate disputes, and to dispense civil, labour, administrative and criminal justice under the law. ...


Tenants in common have no right of survivorship, meaning that if one owner dies, that owner's interest in the property will pass by inheritance to that owner's heirs, either by will, or by intestate succession. For other uses, see inheritance (disambiguation). ... In the law, a will or testament is a documentary instrument by which a person (the testator) regulates the rights of others over the testators property or family after their death. ... Intestacy refers to the body of common law that determines who is entitled to the property of a dead person in the absence of a last will and testament or other binding declaration. ...


Destruction of a tenancy in common

Where the parties to a tenancy in common wish to destroy the joint interest, they can do so through a partition of the property - a division of the land into distinctly owned plots.


If the parties are unable to agree to a partition, any or all of them may seek the ruling of a court to determine how the land should be divided up, physically divide it between the joint owners, leaving each with ownership of a portion of the property representing their share..


Joint tenancy with right of survivorship

A joint tenancy with right of survivorship or JTWROS is a type of concurrent estate in which the joint owners have a right of survivorship, meaning that if one owner dies, that owner's interest in the property will automatically pass to the remaining owner or owners. On the death of one of the tenants, the whole of the property passes to remaining tenant(s); this is the "right of survivorship." The deceased tenant's property interest simply evaporates by operation of law, and cannot be inherited by his heirs (which means it avoids going through probate). Under this type of ownership, the last owner living takes all. Probate is the legal process of settling a dead persons estate: specifically, distributing his property. ...


It is important to note, however, that creditors' claims against the deceased tenant's estate may, under certain circumstances, be satisfied by the portion of ownership previously owned by the deceased, but now owned by the survivor or survivors. In other words, the deceased's liabilities can sometimes remain attached to the property. A creditor is a party (e. ... Estate is a term used in the common law. ...


This form of ownership is common between husband and wife, and parent and child, and in any other situation where parties want absolute ownership to immediately pass to the survivor. For bank and brokerage accounts held in this fashion, the acronym JTWROS is commonly appended to the account name as evidence of the owners' intent.


In order to create this type joint ownership, the party or parties seeking to create it must use specific language indicating that intent. For example, if Joey wishes to convey property for Kelly and Lisa to share as joint tenants with right of survivorship, Joey must state in the deed that the property is being conveyed "to Kelly and Lisa as joint tenants with right of survivorship, and not as tenants in common." A deed is a legal instrument used to grant a privilege. ...


The four unities

In order for a JTWROS to be created, the co-owners must share the "four unities":

  • Time = the property interest must be acquired by both tenants at the same time.
  • Title = both tenants must have the same title to the property in the deed - if the deed places a condition on one tenant and not the other, they do not have the same title, and the attempt to create a JTWROS is invalid.
  • Interest = both tenants must have the same interest in the property - e.g. three owners each having a 1/3 interest.
  • Possession = both tenants must have the right to possess the whole property - if one owner can prove that he or she has been improperly excluded from the property by the other, the JTWROS will be invalidated.

If any one of the four unities is missing, the JTWROS is invalid, and becomes a tenancy in common.


Breaking a JTWROS

The co-tenant in property owned by a JTWROS can break the JTWROS as to their interest in the property at any time by conveying their interest in the property to another person. Under the old common law, this required an actual exchange with a straw man - another person who would buy the property from the co-tenant for some nominal consideration, then sell it back to the co-tenant at the same low price. Many states now permit a joint tenant to break the JTWROS without a straw man, simply by executing a document to that effect - even if that owner does not inform the other owners. In either case, the JTWROS will, again, revert to a tenancy in common as to that owner's interest in the property. A straw man or man of straw is a dummy in the shape of a human created by stuffing straw into clothes. ...


It is important to note, however, that if there are three or more owners, and only one of the owners breaks the JTWROS, the other owners remain in the JTWROS as to each other. For example, suppose Joey, Kelly, and Lisa own a piece of property as joint tenants with right of survivorship, but then Joey conveys his share in the property to Ryan. If Ryan dies, his 1/3 share will go to his heirs. But if Kelly dies, her 1/3 share will go to Lisa, because they still owned their total 2/3 share in JTWROS.


Effect of a mortgage

Where one party takes out a mortgage on the jointly owned property, this may break the JWTROS, depending on the law of the state. Some states use a lien theory, which posits that the taking of a mortgage merely places a lien on the property, leaving the joint tenancy undisturbed. However, other states that use a title theory, contending that a mortgage actually conveys title to the mortgagor until the mortgage is paid. In such states, the taking of a mortgage by one owner breaks the joint tenancy as to that owner.


A creditor's judgment lien is not enough, no severence, if debtor dies before creditor sues, the creditor has no interest in the property left to collect against.


Tenancy by the entirety

Tenancy by the entirety is a type of concurrent estate available only to married couples, wherein ownership of the property is treated as though the husband and wife are a single legal person. Like a JTWROS, the tenancy by the entirety also encompasses a right of survivorship, so if one spouse dies, the entire interest in the property passes to the surviving spouse, without going through probate. Marriage is a relationship that plays a key role in the definition of many families. ...


In order for a tenancy by the entirety to be created, the party or parties seeking to create it must specify in the deed that the property is being conveyed to the couple "as tenants by the entirety". Also, the parties must share the four unities necessary to create a joint tenancy with right of survivorship - time, title, interest, and possession - plus a fifth unity, marriage. However, unlike a JTWROS, neither party in a tenancy by the entirety has a unilateral right to sever the tenancy by the entirety - if it is to be undone, or if any part of the property is to be conveyed to another person, this must be carried out by both husband and wife. A divorce breaks the unity of marriage, leaving the default tenancy – a tenancy in common.


External links

Note that every country and every state in the United States has at least minor variations on the law as applied to joint ownership of property. These links generally discuss the law as applied in the state from which they originate:

  • Massachusetts Association of Realtors page on Co-Ownership of Real Property
  • Illinois Real Estate Tenancies

This outline discusses the general common law of joint ownership of property:

  • Lawspirit page on Concurrent Ownership

IRS Revenue Procedure 2002-20, which covers the finer details controlling what legally constitutes a Tenant in Common.

Tenant in Common Association


  Results from FactBites:
 
RIGHT OF SURVIVORSHIP/TITLE UNDERWRITING/CLAIMS (1594 words)
The right of survivorship is generally viewed as a principal characteristic of joint tenancy and tenancy by the entirety.
First, the Items teach that a right of survivorship is not always incidental, or "automatic," where you have a joint tenancy or tenancy by the entirety.
Third, even where the vesting deed misstates or fails to state marital status of parties, a right of survivorship may be established as a matter of contract law where (a) the vesting deed provides for a co-ownership with a right of survivorship and (b) there's no evidence of contrary intentions of a party.
Concurrent estate - Wikipedia, the free encyclopedia (2143 words)
The type of ownership determines the rights of the parties to convey their interest in the property to others, to will the property to their devisees, or to sever their joint ownership of the property.
Tenants in common have no right of survivorship, meaning that if one owner dies, that owner's interest in the property will pass by inheritance to that owner's devisees or heirs, either by will, or by intestate succession.
On the death of one of the tenants, the whole of the property passes to remaining tenant(s); this is the "right of survivorship." The deceased tenant's property interest simply evaporates by operation of law, and cannot be inherited by his heirs (which means it avoids going through probate).
  More results at FactBites »

 
 

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