Concurrent Estates

We have previously discussed several types of estates in land, all of which can exist simultaneously on the same parcel. These were fee simple, leasehold and easements. Today we are going to talk about other types of concurrent ownership of real estate: Joint Tenancy, Tenancy in Common and Tenancy by the Entirety.

Let’s start first with Tenancy by the Entirety, which is an estate that is recognized in a minority of states in the United States, mostly in the East. Tenancy by the Entirety was a creation of the English common law that was in existence in the American colonies at the time of the American Revolution. This estate is created when title to land is transferred or conveyed to a husband and wife together, and can only be created when there is a legal unity of husband and wife in existence at the time of the conveyance. The tenancy by the entireties ends when the marriage ends, by divorce or death, or by a conveyance from both parties. Real estate held in a tenancy by the entirety grants complete title to both the husband and wife, not as two people, but through the fiction that marriage creates one person, so that the husband and wife own the whole interest collectively, and not any individual share. The property cannot be legally conveyed by only one tenant, but requires the joinder of both husband and wife in order for any transfer to be effective. Upon the death of one of the spouses, the surviving spouse continues to hold the entirety of the property, since under the theory of unity of marriage, the survivor owned it already during the marriage.

Joint Tenancy (or Joint Tenancy with Right of Survivorship) is like Tenancy by the Entirety, but without the requirement of marriage. With a joint tenancy, two (or more) persons can acquire real estate jointly, each one owning a full undivided interest in the property, with the last one living ending up with it all. Under the common law, a joint tenancy was presumed to be created when the exact nature of the concurrent estate was not specified on the deed. But today, many states have now rebutted that presumption by passing statutes that provide that no joint tenancy will be created unless the right of survivorship is expressly provided for in the creating instrument. One of the reasons that people may desire to create a joint tenancy would be to avoid probate, as the property passes automatically to the survivor, and the survivor’s heirs. This can work a hardship on the heirs of the first tenant to die, as they would have no right to inherit. Unlike a tenancy by the entirety, a conveyance of the property by one of the joint tenants is valid, and will sever the joint tenancy.

A Tenancy in Common is the most common of all the concurrent estates today, and is the one that is presumed to be created when a conveyance is into two or more persons. There is no right of survivorship among the tenants, and each interest in fully inheritable and transferable. Each tenant’s share is separate and distinct from that of his co-tenant, except that it is considered to be an undivided interest so that one tenant cannot lay claim to a specific portion of the actual land until there is a partition. Tenants in common can receive their respective interests at different times and from different instruments of conveyance, and the shares do not have to be equal. Each tenant has the right to transfer or convey their interest as he or she sees fit, and each tenant’s interest is fully inheritable and devisable. A conveyance by one tenant does not dissolve the tenancy, and the grantee becomes a new tenant in common with the others.

Each of these estates can be insured under a title policy, provided that the document or deed into the tenants is properly drafted in accordance with state law. In Schedule A of the title policy, examples of how the type of estate would be shown would be:

  • “John and Mary Huxtable, Husband and Wife, as Tenants by the Entireties,” or
  • “John Huxtable and John Huxtable, Jr., as Joint Tenants with Rights of Survivorship,” or
  • “John Huxtable, Thomas Smith and Robert Jones, Tenants in Common.”