Tenancy in Common
Tenancy in common is the law's fallback for co-ownership.
2. Tenancy in Common
A tenancy in common is an estate in real property that is simultaneously owned by two or more people who each hold the right to concurrent possession.
- Tenancy in common is the default concurrent estate. All U.S. jurisdictions have statutorily created a presumption of a tenancy in common whenever two or more persons have a current and equal right to possession and use of property.
- Any conveyance to two or more people will establish a tenancy in common unless both the intent and legal elements to create another recognized co-tenancy are present.
- A tenancy in common may arise involuntarily through intestate succession.
- Each tenant in common owns an undivided fractional share of the entire property that is fully alienable.
- Each tenant in common is entitled to simultaneous possession and use of the entire property.
- A tenant in common has the power to sell, give, devise, or otherwise dispose of their undivided share in the same manner as if they were the sole owner of the property.
- [One tenant in common may not eject the other(s) because each cotenant has an equal undivided interest and the right to occupy the entire premises.]
- [A tenancy in common can be terminated by a suit for partition. Any co-tenant may bring such a suit.]
Tenancy in common is the default co-ownership: any conveyance to two or more people creates one unless another co-tenancy is established. Each tenant owns an undivided fractional share that is freely transferable and descendible, with no right of survivorship.
Tenancy in common is the law's fallback for co-ownership. When two or more people end up with a current and equal right to possess the same property, the law presumes a tenancy in common unless something more specific is shown. That presumption is the whole engine of the concept: any conveyance to two or more people creates a tenancy in common unless both the intent and the legal elements to create another recognized co-tenancy, such as a joint tenancy, are present. Miss either the intent or the elements of that other estate, and you fall back to a tenancy in common. The estate does not have to be created on purpose either; it can arise involuntarily, for example through intestate succession, when an owner dies without a will and the property passes to several heirs at once.
What each tenant in common actually owns is an undivided fractional share of the whole property, and that share is fully alienable. Undivided is the key word: a half-owner does not own a particular half of the land; each tenant is entitled to simultaneous possession and use of the entire property. Because the share is a freely transferable interest, a tenant in common may sell it, give it away, devise it by will, or otherwise dispose of it in the same manner as if they were the sole owner. That last point is the doctrine's signature feature: a tenant in common's interest is descendible and devisable. It passes to the tenant's own heirs or devisees on death, not to the other co-tenants.
Two practical consequences follow. First, because each co-tenant has an equal undivided interest and a right to occupy the entire premises, one tenant in common may not eject the others; no co-tenant can lock another out of the property. Second, when co-owners can no longer share, the way out is a suit for partition: a tenancy in common can be terminated by partition, and any co-tenant may bring such a suit.
There is no right of survivorship in a tenancy in common. If an answer says the deceased tenant's share goes automatically to the surviving co-tenant, it is wrong; the share passes to the deceased tenant's own heirs or devisees.
Default, undivided, descendible, no survivorship. A tenancy in common is the default concurrent estate: a conveyance to two or more people is a tenancy in common unless both the intent and the elements of another co-tenancy are present. Each tenant owns an undivided fractional share of the whole, freely alienable and, the signature point, descendible and devisable. A tenant in common's share passes by will or intestacy to that tenant's own heirs, never to the other co-tenants. There is no right of survivorship; if an answer says the deceased tenant's share goes to the surviving co-tenant, eliminate it. No co-tenant can eject another, and the exit is a partition suit any co-tenant may bring.
A deed conveys a parcel of land to a brother and a sister together, saying nothing more about the form of their ownership. Years later the sister dies, leaving a will that gives everything she owns to a nephew. The brother claims the sister's interest in the parcel passed to him automatically as the surviving co-owner.
If the deed had supplied both the intent and the legal elements of a joint tenancy, the survivorship feature of that estate would carry the share to the brother and the will would not reach it.
An answer that sends a deceased tenant in common's share to the surviving co-tenant, or that imports a right of survivorship into the estate.
A tenancy in common has no right of survivorship; the undivided share is descendible and devisable and passes to the tenant's own heirs or devisees.An answer that adds a requirement to the share, for example that a co-tenant needs the others' consent to sell or devise, or that a tenant owns a specific physical portion rather than an undivided interest.
Each tenant owns an undivided fractional share of the whole and may dispose of it as if sole owner; no consent is required and the interest is undivided, not a particular piece of land.An answer that treats some other co-tenancy as the default the law presumes, or that denies co-ownership can arise without an express deed.
The tenancy in common is the statutory default for any conveyance to two or more people, and it can arise involuntarily through intestate succession.An absolute answer letting one co-tenant exclude or eject another in possession, or asserting that co-owners always hold equal-fraction shares or that the first occupant controls.
No co-tenant may eject another because each has the right to occupy the entire premises; the tested rule fixes neither the share sizes nor a first-occupant priority.An answer that blocks partition because the property cannot be physically divided or because another co-tenant objects.
A tenancy in common may be terminated by a suit for partition that any co-tenant may bring; the others' objection and the property's indivisibility do not bar the suit.the stem gives you property owned by two or more people at the same time, often from a deed that says nothing about the form of ownership or from an owner who died without a will, and then one co-owner tries to sell, give away, or leave their share, or tries to keep another co-owner off the land, or wants out of the arrangement.
The moment you see co-ownership with no joint-tenancy language, default to a tenancy in common and run the checklist: each owner has an undivided, freely transferable, descendible share; a dead tenant's share goes by will or to heirs, not to the survivor; no one can eject anyone; and any co-tenant can force a partition.
The classic distractor sends the deceased tenant's share to the surviving co-owner by survivorship; in a tenancy in common, eliminate it.
A deed conveyed a tract of land to a woman and her business partner together. The deed described the two grantees by name and said nothing about how they were to hold the property or about any right of survivorship. The woman later died, leaving a valid will that devised all of her property to her daughter. The business partner asserted that the woman's interest in the tract belonged to him because he was the surviving co-owner.
Who is entitled to the woman's interest in the tract?
An owner of farmland died without a will. Under the law of intestate succession, the farmland passed at once to her three adult children, and no document specified how the children were to hold it. One of the children wanted to sell his interest in the farmland to a neighbor, but the other two children objected, insisting that none of them could transfer anything unless all three agreed and that, in any event, they did not own the land until a court formally divided it among them.
May the child sell his interest in the farmland over his siblings' objection?
A brother and a sister inherited a lakeside cabin and held it together as concurrent owners, neither having a right of survivorship. The sister lived in another state and visited rarely, while the brother used the cabin most weekends. Deciding he wanted the place to himself, the brother changed the locks and told the sister she was no longer welcome to stay there, pointing out that he was the one who actually maintained and occupied the cabin.
May the brother lawfully exclude the sister from the cabin?
Two friends bought a small commercial building together and held it as concurrent owners with no right of survivorship. After several years their plans for the building diverged, and they could no longer agree on how to use or manage it. One friend wanted to end the co-ownership and have the property or its value divided, but the other refused to cooperate, insisting that the building was a single structure that could not be split in two and that nothing could be done while she objected.
Can the friend who wants out bring an action to terminate the co-ownership?
A landowner conveyed a vacant lot by a single deed to a man and a woman, who were not married to each other. The deed listed both grantees as the recipients but did not state that they were to take with a right of survivorship and did not otherwise describe the form of their ownership. A buyer later interested in the lot asked a title examiner what kind of concurrent estate the deed created and what would happen to one grantee's interest if that grantee were to die.
What estate did the deed create, and what becomes of a grantee's interest at death?