Joint Tenancy Definition

What Is Joint Tenancy?

Joint tenancy is a form of property ownership involving two or more parties who hold equal ownership of the property and enjoy equal rights and responsibilities.

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How Does Joint Tenancy Work?

joint tenancy

Joint tenancy is a type of ownership where multiple parties or individuals enter into a legally binding agreement to equally possess a property. Marriage is not a prerequisite for joint tenancy creation; joint tenants can be relatives, friends, colleagues, or business partners.

The term “tenants” can be misleading, as it does not pertain to renters. In the context of property law[1], it refers to the owners of real property.

Because ambiguous language is open to multiple interpretations, courts prefer specific wording that expresses the desire of property owners to enter a joint tenancy agreement. Therefore, the deed to the property must explicitly call the property owners as joint tenants. Without such a clear and explicit statement, property owners may lose the “right of survivorship” that joint tenancy guarantees if they are not described as joint tenants in writing.

As joint tenants, each owner owns an equal share of the property and receives the same benefits as the other titled owners. If they rent out the property, all joint tenants will receive an equal distribution of the income. If they sell the asset, each owner’s share of the sale proceeds should not be bigger or smaller than the others.

On the other hand, joint tenants equally share the financial burdens of property ownership. All parties must shoulder mortgage payments, insurance premiums, taxes, and maintenance expenses. If one fails to contribute, the others have to step up and assume responsibility for this person’s financial obligations.

If one of the joint tenants dies, their share of the property will automatically pass on to the remaining joint tenant or tenants.

What Are the “Four Unities” in Joint Tenancy?

A joint tenancy must satisfy four requirements to be and remain valid. Called the four unities[2], they ensure true equality among joint tenants.

The following are the four unities:

  • Unity of Time. All joint tenants must create their interests at the same time and for the same period.
  • Unity of Title. All joint tenants must create their interests using the same instrument or act. A will is a good example.
  • Unity of Interest. All joint tenants must have identical interests; in other words, equal share.
  • Unity of Possession. All joint tenants must not have any undivided share of the asset. No party should be exclusively entitled to a part of the property.

Any act or event that violates any of the four unities effectively ends the joint tenancy.

What Is the Partition Option in Joint Tenancy?

Joint tenancies are subject to partition. It is a legal action that aims to divide up the asset based on the interests of all co-owners.

Any joint tenant who wishes to get out of the co-ownership agreement may go to court and take advantage of this remedy. The court may grant the request of the party seeking partition.

There are three endings[3] to a partition lawsuit:

  • “In kind” partition. If feasible, the joint tenants can physically divide the property into individually owned sections. It involves one or more home improvements or renovations to execute.
  • Partition by Sale. The joint tenants sell the property through either a public auction or a transaction with a private buyer. All keep equal cuts of the proceeds.
  • Partition by Appraisal. With the permission of the court, the other joint tenants may buy out the party seeking partition to retain ownership of the property.
    A partition lawsuit can be expensive and time-consuming. Considering that it will affect all joint tenants one way or another, it is in the best interests of all parties to avoid it as much as possible.

Usually, a clear, fair agreement and full cooperation among joint tenants on property-related matters can discourage one from pursuing partition. An amicable resolution to a potentially emotionally charged matter like this[4] deserves consideration.

Joint Tenancy vs. Joint Tenancy With Right of Survivorship (JTWROS)

Joint tenancy with rights of survivorship (JTWROS) has the same characteristics as joint tenancy except for one key difference.

With joint tenancy (without full rights of survivorship), any owner may transfer their interest in the property to a third party. If they do so, the joint tenancy will convert to a tenancy in common, allowing each owner to transfer their interest in the property to whoever they want after they die.

With JTWROS, the “right to survivorship” may not be terminated by an act of conveyance from one of the joint tenants. Survivorship rights may only be severed by an act of all the parties. With full rights of survivorship, even if an owner sells or gives his property to a third person, the joint tenancy is not severed. Instead, the original joint tenants still automatically acquire the property when the owner dies.

Joint Tenancy vs. Tenancy in Common (TIC)

Tenants in Common (TIC) is the most common form of ownership of property with two or more owners who are not married to each other.

Unlike joint tenancy, it does not necessarily grant co-owners equal ownership of the property. The interests of tenants in common directly reflect the amount of money they contribute. For example, if one partner pays 40% of the asset’s price, this owner’s share is 40%.

Another benefit tenants in common enjoy (that joint tenants do not) is the ability to make nonconsensual decisions regarding their interests.

In a TIC, all parties can transfer their shares and/or borrow against them without having to seek or wait for the approval of others. Tenants in common do not have to shoulder each other’s property-related financial obligations. So, one party could be immune to any loan another takes out on the asset.

On the other hand, a TIC has no “right of survivorship” clause. If a tenant in common passes away, the other co-owners will not automatically become the inheritors of the deceased person’s interest. Instead, the share will go to the estate or the specified heir(s) of the deceased. The inheritance might have to undergo probate, although things may go much smoother if the deceased left a will[7] before passing away.

However, like a joint tenancy, a TIC is also subject to partition. If co-owners do not specifically title the property as a joint tenancy, the court may recognize it as TIC by default. Note that in some parts of the United States, a joint tenancy can turn into a TIC under certain circumstances. A classic scenario is when all of the joint tenants die at the same time. The court has to treat the inheritance as a TIC to distribute it to its rightful beneficiaries accordingly.

In this case, if multiple parties inherit the property from a last surviving joint tenant, they would be tenants in common, not joint tenants.

Joint Tenancy vs. Tenancy by Entirety (TBE)

Tenancy by Entirety (TBE) is the ownership of property designed for married couples. It is not as popular as the other title vesting options because not all U.S. states[8] allow it.

TBE is similar to joint tenancy in almost every way. The only difference is that tenants by entirety need to do more than meeting and preserving the four unities. Staying married is another condition.

By definition, divorce will render a TBE invalid. However, the two parties may voluntarily and mutually take steps to change the nature of their joint tenancy if they wish.
The right of survivorship in a TBE supersedes any existing will or trust of either party. The only heir to a tenant of entirety’s interest is the surviving spouse.

In states that allow TBE, married couples do not have to specify the type of property ownership they prefer. These states automatically consider them as tenants by entirety, unless they specifically title their jointly owned assets as a joint tenancy or TIC.

Takeaways

Joint tenancy is a common form of property ownership with two or more owners. Joint tenants own the asset equally, and each party enjoys the right of survivorship. To make a joint tenancy valid, all parties ought to consistently meet the requirements of the four unities.

Sources

  1. Alexander, G. (2018.) Property law. Britannica. Retrieved from https://www.britannica.com/topic/property-law
  2. LawShelf. (n.d.) Joint Tenancy. Retrieved from https://lawshelf.com/coursewarecontentview/joint-tenancy/
  3. Mastroeni, T. (2020.) What Is a Partition Lawsuit? A Method for Severing Joint Ownership. Millionacres. Retrieved from https://www.millionacres.com/real-estate-basics/real-estate-terms/what-partition-lawsuit-method-severing-joint-ownership/
  4. Sher, M. (2010.) Emotional And Technical Challenges To Mediating Partition Actions. Mediate.com. Retrieved from https://www.mediate.com/articles/sherM3.cfm 
  5. LegalNature. (n.d.) Right of Survivorship: Everything You Need to Know. Retrieved from https://www.legalnature.com/guides/everything-you-need-to-know-about-right-of-survivorship 
  6. Nolo. (2021.) What is Probate? Retrieved from https://www.nolo.com/legal-encyclopedia/probate-faq.html
  7. American Bar Association. (n.d.) Introduction to Wills. Retrieved from https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/an_introduction_to_wills/
  8. Garber, J. (2021.) Property Titles: Tenants by the Entirety. The Balance. Retrieved from https://www.thebalance.com/tenants-by-the-entirety-3505608

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