Tenants in common vs. joint tenants

Written by john stevens
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Tenants in common vs. joint tenants
Property held as joint tenants cannot be passed by will or trust because of the right of survivorship. (Jupiterimages/Comstock/Getty Images)

There are many different ways in which co-owners of property can hold title, but the two most common ways are as tenants in common and as joint tenants. There are sharp distinctions between the two forms of ownership. Whether one form of holding title is better than another depends on each individual situation and what the objectives of the co-owners are. Consult with an attorney in your state to discuss how the forms of ownership affect your interests, and whether a more appropriate form of title exists in your jurisdiction.

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Under old English law, which was adopted by the newly formed United States, a tenancy in common was the presumed way in which two or more co-owners of property would acquire title. It is still the default form of common ownership in most, if not all, of the states today. A joint tenancy can be created only with language specifying that title will be held as joint tenants. The traditional required language was "as joint tenants with the right of survivorship." However, most states now recognise a joint tenancy without the "right of survivorship" language. In these states, "To Jane and John Doe as joint tenants" would suffice.

Right of Survivorship

The right of survivorship applies to a joint tenancy but not to a tenancy in common. The right of survivorship provides that the surviving joint tenant(s) automatically takes the share of a joint tenant who dies. For example, if John, Jane and Bob owned property together as joint tenants and John died, Jane and Bob would automatically take John's interest in the property. Jane and Bob would remain as joint tenants. If John, Jane and Bob had owned the property as tenants in common, John's share would have instead passed under his will, trust or under the laws of the state.

Property Interests

Joint tenants must own the same interest in the property. By contrast, tenants in common may own unequal shares in the property. For example, if John owned one-half of Blackacre and Jane and Bob each one one-quarter of Blackacre, the three are tenants in common.

Title and Time

Tenants in common need not acquire title to the property by the same instrument, such as a will or deed. However, a joint tenancy requires that all of the joint tenants acquire title under the same instrument. Similarly, whereas joint tenants must acquire title to the property at the same time, tenants in common do not. For example, suppose that the property owner leaves her property in a will "To Bob for as long as he lives, then to his heirs and the heirs of Jane as joint tenants." Only a joint tenancy is created. When Bob dies, it can be determined who his heirs are. However, Jane may still be alive when Bob dies. Since a person does not have heirs until death, Bob's heirs could inherit the property before Jane has any heirs. In that case, only a tenancy in common was created even though the property was conveyed in the same instrument, the will.

Possession

Joint tenants must have the right to possess the entire property. By contrast, tenants in common need not have the right to possess the entire property. For example, suppose that Bob gives a duplex to John and Jane as joint tenants, with John getting the upstairs unit and Jane getting the downstairs unit. Because John only has the right to possess the upstairs unit and Jane can only possess the downstairs unit, they are not joint tenants. Instead, they are tenants in common.

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