Severance
Severance is the act that breaks a joint tenancy apart.
4. Severance
Severance is the act of converting all or a fractional portion of a joint tenancy into a tenancy in common.
- A joint tenancy can be terminated by a suit for par on. Any joint tenant may bring such a suit.
- A unilateral inter vivos conveyance by any joint tenant severs the joint tenancy and creates a tenancy in common as to that interest, but the joint tenancy remains intact as to the unsevered joint interests.
- In most states, one joint tenant’s execution of a mortgage on their interest does not sever the tenancy.
Severance converts all or a fractional portion of a joint tenancy into a tenancy in common. It changes the form of co-ownership; it does not necessarily destroy the whole relationship, and as to a single share it severs only that share while the rest stay joint.
Severance is the act that breaks a joint tenancy apart. Specifically, it converts all or a fractional portion of a joint tenancy into a tenancy in common. The thing to fix in your mind is that severance changes the form of co-ownership; it does not necessarily destroy the whole co-ownership relationship. The tested scope gives you exactly three points, and you should treat them as a closed set.
- 1Partition. A joint tenancy can be terminated by a suit for partition, and any joint tenant may bring such a suit. No one needs the agreement of the others; the right to seek partition is individual.
- 2A unilateral inter vivos conveyance. When any one joint tenant conveys their interest during life, that act severs the joint tenancy and creates a tenancy in common as to that interest, but the joint tenancy remains intact as to the unsevered joint interests. So if three people hold as joint tenants and one of them sells, the buyer comes in as a tenant in common for that one-third, and the two who did not sell stay joint tenants with each other as to the remaining two-thirds.
- 3A mortgage. In most states, one joint tenant's execution of a mortgage on their interest does not sever the tenancy.
One timing point ties this together. The severing conveyance has to be inter vivos, meaning it happens during the joint tenant's life. A transfer that purports to take effect at death does not sever; survivorship governs what happens at death. So the act that severs is a living act of transfer or a partition suit, not something a joint tenant tries to do by will.
Severance is partial, not all-or-nothing. The common wrong answer says the whole joint tenancy collapses; it does not, because the unsevered interests stay joint. And keep the 'in most states' qualifier on the mortgage rule: it is the majority position, not a universal one, so an option saying a mortgage always severs, or never severs, overstates it.
Three ways the joint tenancy gives way, and only three: a partition suit (any joint tenant may bring it), a unilateral inter vivos conveyance (severs as to that share only, the rest stay joint tenants), and the non-event, a mortgage (in most states it does not sever). The headline trap is the absolute: 'one tenant's act destroys the entire joint tenancy.' It does not. Severance is partial; the unsevered interests stay joint. Cue: a joint tenant sells, mortgages, or sues to split, and you ask what survives.
Three siblings own a parcel as joint tenants with right of survivorship, each holding an equal share. One sibling, needing cash, sells her entire interest to an outside buyer by deed delivered during her life. The other two siblings did nothing.
Suppose the sibling did not sell or mortgage but tried to leave her share by will. That is not an inter vivos act and does not sever; her interest passes by survivorship at death, and the will has nothing to operate on.
An absolute saying that when one joint tenant conveys, the ENTIRE joint tenancy is destroyed or that ALL co-owners become tenants in common.
Severance is partial. A unilateral inter vivos conveyance severs only the conveyed interest; the joint tenancy remains intact as to the unsevered joint interests.A mortgage option that a joint tenant's mortgage ALWAYS severs at signing, or that a transfer at death (or a will) severs the joint tenancy.
In most states a mortgage on one tenant's interest does NOT sever; and a severing conveyance must be inter vivos, so a transfer at death does not sever because survivorship governs at death.A partition option requiring the consent or joinder of all joint tenants, or letting only a majority sue, before a partition action may proceed.
Any joint tenant may bring a suit for partition; the right is individual and does not depend on the other owners' agreement.A right-outcome option that pins the tenancy-in-common form on the wrong owners, or that lets the buyer succeed for a reason the rule does not turn on.
Name the operative reason: the conveyed share becomes a tenancy in common (held by the grantee), and the non-conveying tenants remain joint tenants with each other.the stem hands you property held in joint tenancy and then has one co-owner do something to their own share, sell it, mortgage it, sue to split the land, or try to pass it on, and asks what happens to the co-ownership.
If a joint tenant brought a partition suit, the joint tenancy can be terminated, and any joint tenant could have brought it.
If a joint tenant made a unilateral inter vivos conveyance, that share is severed into a tenancy in common, but the unsevered interests stay joint, so watch for the absolute answer that wrongly destroys the whole thing.
If a joint tenant only mortgaged their interest, in most states nothing is severed.
And if the act was a transfer at death rather than during life, it is not a severance at all.
Match the act to the right one of these and the distractors fall away.
Three friends bought a vacation cabin together and took title as joint tenants, each holding an equal share. Years later, one of the three sold her entire interest in the cabin to an outside buyer by a deed she signed and delivered while she was alive. The other two friends were not involved in the sale and continued using the cabin as before. A dispute later arose about how the three current owners hold title, and the buyer argued that the entire arrangement had become a tenancy in common among all of them.
How do the current owners hold title after the sale?
Two co-owners held a tract of farmland as joint tenants. One of them wanted to end the co-ownership and have the land divided so each could hold a separate, individual portion, but the other co-owner refused to agree to any division and would not sign anything. The co-owner who wanted out went to court seeking to have the joint tenancy terminated through a court-ordered division of the property.
May the co-owner obtain a court-ordered termination of the joint tenancy over the other's objection?
A brother and a sister owned a rental duplex as joint tenants. The brother, who needed money for his business, borrowed a large sum from a lender and gave the lender a mortgage on his interest in the duplex to secure the loan. The sister did not sign the mortgage and was not part of the loan. Some time later, a question arose about whether the brother's mortgage had changed how the siblings held title, and the answer should be resolved under the rule followed in most states.
Did the brother's mortgage on his interest sever the joint tenancy?
Two cousins owned a lakefront lot as joint tenants. One cousin, wanting to make sure his share went to his own child rather than passing to the other cousin, signed a will leaving his interest in the lot to his child. He kept the will in a drawer, told no one, and made no transfer of the lot during his lifetime. He later died, and his child produced the will and claimed that it had converted the cousin's interest into a tenancy in common that the child could now inherit.
Did the cousin's will sever the joint tenancy as to his interest?
Four business partners owned an office building together as joint tenants, each with an equal share. One partner sold his entire interest to an outside investor by a deed delivered during his life. The remaining three partners took no action of their own. A new partner then asked how the building was held immediately after the sale, given that one of the original four had been replaced by the investor.
How is the building held immediately after the one partner's sale?