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Concurrent Ownership

Situations arise where two or more persons have simultaneous rights of present or future possession. There are three main types: the joint tenancy, the tenancy in common, and the tenancy by the entirety.

A. Joint Tenancy

Each joint tenant has an equal interest in the whole property.

Right of Survivorship is the outstanding characteristic of the joint tenancy. When one joint tenant dies, the decedent’s interest is extinguished and the survivors continue to hold an undivided right in the property. The decedent’s will has no impact on the property. Note: A deceased joint tenant’s creditor cannot reach the surviving joint tenant’s interest.

Four Unities were essential to a joint tenancy at common law and in many states today. Mnemonic: The Pig Is Tenant

a. Time The interests of each joint tenant must be acquired at the same time.

b. Possession Each joint tenant must have an equal right to possess the whole property.

c. Interest All the joint tenants must have identical interests in the property, both as to duration and fractional share.

d. Title All joint tenants must acquire title by the same instrument.

3. Creation of Joint Tenancies
At common law, there was a presumption that a cotenancy was a joint tenancy.

a. Modern statutes now presume that a cotenancy is a tenancy in common (see below) in the absence of language which clearly indicates an intention to create a joint tenancy.

b. Explicit language is required to create a joint tenancy (e.g., “to A and B as joint tenants with right of survivorship, and not as tenants in common”).

c. A wants to convert his fee simple into a joint tenancy with B.

i. Common Law View
This could not be accomplished by conveying “from A to A and B” because the requirements of unity of time and unity of title would not be satisfied. Strawman transfers were the solution to this problem at common law. A transfers to X who then transfers to A and B jointly so that the unities of time and title are not broken.
ii. Modern statutes allow a property owner to create a joint tenancy in himself and another party without the use of a strawman.

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