Introductory note: This chapter examines various ways in which two or more persons may own present possessory interests in the same property. The three varieties of co-tenancy are: (1) joint tenancy (which includes the right of survivorship; (2) tenancy in common (which does not have the right of survivorship); and (3) tenancy by the entirety, which exists only between husband and wife, and which includes not only survivorship but indestructibility, in the sense that neither party can convey his interest or otherwise destroy the right of survivorship. After we discuss these three types of co-ownership, we treat various issues involving the relation between parties (e.g., the right to possession of the premises, the duty to account for rents received from third persons, etc.).
A. Each tenant owns whole interest: In a joint tenancy, two or more people own a single, unified, interest in real or personal property. Each joint tenant has exactly the same rights in the property; thus one cannot have a greater interest than the other.
1. Right of survivorship: The most significant feature of the joint tenancy is that each joint tenant has a right of survivorship. That is, if there are two joint tenants, and one dies, the other becomes sole survivor of the interest that the two of them had previously held jointly. Survivorship is discussed more fully infra, p. 139.
2. Right of possession: In a sense, each of the joint tenants owns the “entire” interest, subject only to the rights of the other(s). While this may sound somewhat metaphysical, it has one clear consequence: each joint tenant is entitled to occupy the entire premises, subject only to the same right of occupancy by the other tenants. Thus the parties are not required to divide up the premises for occupancy, though they are free to do this if all agree. Relations between joint tenants (and between other types of co-tenants, including tenants in common and tenants by the entirety) are discussed infra, p. 147.
B. Four unities: Under the traditional common-law view, a joint tenancy exists only where the so-called “four unities” exist: (1) the unity of “interest,” (2) the unity of “title,” (3) the unity of “time” and (4) the unity of “possession.” See Moynihan, p. 217.
1. Unity of interest: Unity of interest means that the joint tenants must have identical interests, both as to their share, and as to the duration of their interest. Thus one joint tenant cannot have a one-fourth interest and the other a three-fourths interest. Similarly, if one person has a one-half interest for life, and the other has a one-half interest in fee simple, the two are not joint tenants because the durations are not identical. See 2 A.L.P. 6.