08/07/2023
Real Property may be owned severally-that is, separately by one person or it may be owned by two or more persons known as Co-tenants. The most common co-tenant relationships are tenants in common, joint tenants, tenants by the entirety, and tenants in partnership.
TENANTS IN COMMON
When two or more persons own real property as tenants in common, each person owns an undivided share, and on one owner's death, that person's share passes to his or her heirs or devisees. Each owner is entitled to possession of the entire premise. This tenancy may be created by deed or will, but more commonly it comes about by operation of law, such as when a person dies intestate, leaving real property to two or more heirs. Such heirs will take the property as tenants in common.
Any of the tenants in common may sell or grant out their interests to others without permission of the other co-tenants, and any new owners become tenants in common with the remaining owners. One tenant's interest is not necessarily the same as another tenant's interest. For example, one person might own a one-half interest with two others who each own a one-quarter interest, all as tenants in common.
Tenants in common may separate their interest in the property by petitioning the court for a partition of the premises. When a partition occurs, the court either divides the property into separate parcels, So that each co-tenant with own a particular part outright, or orders the property sold and divides the proceeds of the sale among the co-tenants. Creditors may reach the interest of a tenant in common, and have the interest sold or hold it with the remaining tenants in common.
JOINT TENANTS
When two or more persons own real property as joint tenants, the estate created is a single estate with multiple ownership. Joint tenants are two or more persons holding one in the same interest, accruing by one in the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. Each tenant owns the entire estate, subject to the equal rights of the other joint, tenants. All joint tenants' interests are equal, and all have the right to possession of the entire estate. On the death of one joint tenant, the entire ownership remains in the other joint tenants and does not pass to the heirs or devisees of the decedent.
A joint tenant may grant out his or her interest to a new owner without permission of the other joint tenants, but the new owner becomes a tenant in common with the remaining joint tenants. Similarly, a joint tenant may petition the court for a partition of the estate, which would end the joint tenancy. Creditors may levy on the interests of a joint tenant on ex*****on and take over the joint tenant's interest as a tenant in common with the remaining joint tenants. To levy on ex*****on means to collect a sum of money by putting into effect the judgment of a court.
A tenancy by the entirety may be held only by a husband and wife a is based on the common law doctrine that a husband and wite are regarded, in law, as one person. Under common law theory, each and spouse owns the entire estate, which neither can destroy by any separate act. The husband, however, has the entire control over the estate including the exclusive right to possession and the right to all rents and profits. On the death of either spouse, the survivor owns the entire estate outright.
TENANTS BY THE ENTIRETY
Under the common law rule, the husband may transfer his interest in the tenancy to someone else without his wife’s consent. In addition, his interest may be attached and taken on ex*****on by his creditors. His interest, however, is limited to merely the right to possession of the property and profits from it, plus exclusive title only if he survives his wife. He cannot defeat his wife’s interest in the estate while she is alive without her consent. If she outlives her husband, the wife will gain full possession and title to the property, regardless of what has been granted out by the husband or attached by the husband’s creditors.
The wife, unlike the husband, may not transfer her interest in the tenancy by the entirety to someone else without the husband’s consent, under common law theory. Similarly, her interest may not be attached or taken on ex*****on by her creditors. For these reasons, the tenancy by the entirety has been a popular method of ownership by a husband and wife for protection against attaching creditors. Neither spouse can defeat the other spouse’s interest in the estate without the other’s consent, and a court has no power to partition a tenancy by the entirely.
In recent years, because of the unequal rights of spouses in the tenancy by the entirety, some states no longer use it as a form of co- ownership of real property. Other states have modified the common law version to give equal rights to the spouses, while at the same time retaining the feature of protection against attachment by creditors. Here is an example of a modern state statute.
A husband and wife shall be equally entitled to the rents, products, income or profits and to the control, management and possession of property held by them as tenants by the entirety. The interest of a debtor spouse in property held as tenants by the entirety shall not be subject to seizure or ex*****on by a creditor of such debtor spouse so long as such property is the principal residence of the non-debtor spouse: procided, however, both spouses shall be liable jointly or severally for debts incurred on account of necessaries furnished by either spouse or to a member of their family.
A divorce, by operation law, automatically converts a tenancy by the entirety owned by the former spouses into a tenancy in common.
TENANTS IN PARTNERSHIP
Tenancy is partnership is a form of ownership of real property that is available to business partners if they choose to use it. It is governed by the Uniform Partnership Act in those states that have adopted it. Under the act, individual partners cannot transfer their interests in the property to others unless all of them do so, and individual partners' interests in the property are not subject to attachment or ex*****on except on a claim against the partnership.
On the death of a partner, the decedent's rights in specific partnership property become vested in the surviving partners who may possess such property only for partnership purposes. Death causes the dissolution of a partnership, however, and the surviving partners must account to the estate of the decedent and pay over to the estate the value of the deceased partner's equity in the partnership.
