Joint tenant and tenant in common

You may have seen the above terms in a title deed, but what do they mean to you? In an effort to understand certain legal terms, we now turn to two terms that are familiar, but are often misunderstood. It is not infrequent to find the first in deeds of conveyance of property owned by a husband and wife or deeds of assent in which property is willed to children. What is joint ownership? Joint ownership is where two or more persons own an undivided property as a whole.{{more}} The property could be real or personal. What are the implications?

Four unities

Joint ownership is not especially liked and so it must be expressly created. For joint ownership to be effective, there must be four unities when the title is created. (1) The parties must take their interest at the same time. (2) They must take their interest in the same deed. (3) The parties must have the same right to use and possess the whole and (4) they must have an undivided right as joint tenants.

Right of survivorship

The distinctive feature of joint ownership is that there is a right of survivorship. This means that if one joint tenant dies, the other joint tenant automatically takes the whole property; if there are multiple joint tenants then the joint tenancy continues among the remaining joint tenants. An interest in joint tenancy is not “devisable”; that is, it cannot pass by will and it is not “descendible”; that is, it cannot pass intestate (by letters of administration). The right of survivorship is stated in the document, but its omission will not nullify joint ownership. With a husband and wife there is a joint tenancy of entirety. This could be created by will and deed. Where one dies, the property or the money goes automatically to the other. It is protected from creditors, in that a wife cannot be held to pay a husband’s debt from it. Neither joint owner could dispose of his or her interest. With a divorce, the joint tenancy is severed and becomes a tenancy in common.

Severance of joint tenancy

The joint tenancy could be severed by mutual conveyance to another party. A court can sever in a forced sale where each joint tenant could obtain an equal amount of money. Where one party conveys his share to another, then the joint ownership is changed to a tenant in common. The new tenant will be a tenant in common with the other joint tenant or with multiple joint tenants. In other words, the joint tenants continue to be joint tenant for multiple joint owners, but tenant in common with the new tenant.

Tenancy in common

Tenancy in common is where the tenants own separate and distinct shares in the whole property. The property may be partitioned, if the owners wish to do so. If one wants to and the other does not, the matter could be taken to court. What is distinctive is that there is no right of survivorship. The interest could be freely alienated and could be passed by will or interstate. In short, the interest does not automatically go to the other party or parties named in the deed, as in joint tenancy. It goes to the heirs of the deceased.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com