The exact language used in conjunction with the names on a title to real property is extremely important.
Joint tenancy with right of survivorship is manner of titling real estate that contains specific rights and liabilities for each concurrent owner. It is used often by married homeowners for their family home. However, joint tenancy with right of survivorship can be used by unrelated people on the title for any real estate. This form of concurrent ownership is hundreds of years old and has its roots in English common law. Despite its age and common origin, each US jurisdiction is free to alter the rights and liabilities of co-owners of property titled as joint tenants with right of survivorship. As a result, you should consult with an attorney in your state who has experience in property law.
In a joint tenancy, two or more people own a single, unified interest in real or personal property. Here are the most important attributes of a joint tenancy:
- Survivorship: Each joint tenant has a right of survivorship. That is, if there are two joint tenants, and one dies, the other becomes sole owner of the interest that the two of them had previously held jointly.
- Possession: Each joint tenant is entitled to occupy the entire premises, subject only to the same right of occupancy by the other tenant(s).
- Equal shares: Since the joint tenants have identical interests, they must have “equal shares.” Thus one joint tenant cannot have a one-fourth interest, say, with the other having a three-fourths interest.
A joint tenancy must be created by a deed or will, and must be created in both or all joint tenants at the same time. Usually, a joint tenancy is created by specific language: “To A and B as joint tenants with right of survivorship.” At common law, A (owner of a fee simple) cannot create a joint tenancy between himself and another by conveying “to A and B as joint tenants.” But many states, by statute or case law, now permit this result.
There are a number of ways in which a joint tenancy may be destroyed. Severance normally results in the creation of a tenancy in common. A joint tenant may convey his interest to a third party. Such a conveyance has the effect of destroying the joint tenancy.
For example, let us say A and B hold Mom’s House as joint tenants. A conveys his interest to C. This conveyance destroys the joint tenancy, so that B and C now become tenants in common, not joint tenants.
If there are three or more original joint tenants, a conveyance by one of them to a stranger will produce a tenancy in common as between the stranger and the remaining original joint tenants, but the joint tenancy will continue as between the original members.
For example, let us say A, B and C hold Mom’s House as joint tenants. A conveys his interest to X. Now, X will hold an undivided one-third interest in the property as a tenant-in-common with B and C. B and C hold a two-thirds interest, but they hold this interest as joint tenants with each other, not as tenants-in-common. Thus if X dies, his interest goes to his heirs or devisees. But if B dies, his interest goes to C.
Courts are split as to whether the granting of a mortgage by one joint tenant severs the joint tenancy. In so-called “title theory” states, the mortgage is treated as a conveyance, and thus severs the joint tenancy (so that the mortgagee can foreclose on the undivided one-half interest of the mortgagor, but the interest of the other party is not affected). In “lien theory” states, the mortgage does not sever the joint tenancy; in some but not all lien theory states, if the mortgagee dies first, the other joint tenant takes the whole property free and clear of the mortgage.
Most courts hold that a lease issued by one joint tenant does not act as a severance of the joint tenancy.
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