Tenancy in Common is a form of real estate title wherein more than one person possesses a share of the property. The persons who own portions of the property are called “tenants in common”. Tenancy in common is a widely used form of joint possession of real property. Most jurisdictions presume that property being held by more than one person is a tenancy in common arrangement.
A tenancy in common is formed once the tenants in common have “unity of possession”, that is, they share the property together. They do not all have to take possession at the same time. Unlike a joint tenancy, there is no “right of survivorship” in a tenancy in common.
Do Property Interests Have to be Equal Between Tenants in Common?
No- tenants in common may hold unequal shares of the property. For example, in an arrangement between three tenants in common, one of them may hold an interest in half of the property, while the other two each have a one-fourth interest.
On the other hand, each tenant entitled to use the entire property, so long as they still own their respective portion of the property.
Can Tenants in Common Transfer Their Property Interests to Other Parties?
Tenants in common can transfer their property interest to another person at any time during the life of the tenant. They can do so through various means, such as through a sale, by gift, or by devise in a valid will. However, a tenant in common usually cannot transfer the property interests of another tenant.
What Happens to the Property Share If a Tenant in Common Dies?
A tenant in common’s share can also be transferred in a will. If the tenant in common does not have a valid will at the time of death, their fractional share of the property must be distributed according to probate laws.
Tenants in common do not have the “right of survivorship” as in a joint tenancy. In a joint tenancy, the right of survivorship allows the remaining tenants to take over a tenant’s property share if they die. In a tenancy in common, the deceased person’s share will pass to their heirs through a will or through the probate process rather than to the surviving tenants.
How Is a Tenancy in Common Terminated?
A tenancy in common may be terminated in a few different ways. Though laws may vary by state, tenants in common may terminate the arrangement in three ways: 1) by an agreement between all of the tenants in common; 2) by a judge-ordered partition (either a physical division of the land or a partition by sale); or 3) by ouster, which means any act which unlawfully deprives a tenant in common of their share of the property.
Note that ouster is illegal and may result in legal consequences for the party that committed the ouster. Many other disputes may arise between tenants in common, especially when it comes to calculating the value of each person’s share.
Should I Contact a Lawyer for Disputes with Tenants in Common?
If you have any questions or disputes regarding tenancy in common rules, you may wish to contact a property lawyer for advice. A lawyer can be of much help at various stages of the arrangement. An attorney in your area can help draft a tenancy in common agreement, handle distributions of property shares, or represent a tenant in court.