A joint tenancy is a form of joint possession of real property. Joint tenancy is similar to tenancy in common in that certain rights and duties come with joint tenancy, but joint tenancy includes a right of survivorship. A right of survivorship means that if a joint tenant dies, their interest in the land passes to the other joint tenant(s). The surviving joint tenant(s) have a right to the whole estate. Thus, when a joint tenant dies, they may not pass their share on to their heirs. Joint tenants are entitled to possess and use the entire property, even though they only own a share of it.
In order for a joint tenancy to exist, four conditions, or unities, must be met:
- All tenants acquired the property at the same time
- All tenants have an equal interest in the property
- All tenants acquired title by the same deed or will
- All tenants have an equal right to possession
If any one of the four unities has not been met, or if it is unclear whether a joint tenancy has been formed, most courts will presume that the more favored tenancy in common has been formed.
In order to terminate a joint tenancy, one of the four unities must be destroyed. You may do this by conveying your joint tenancy interest to any third person. This can be done through gift or sale. Upon termination, a tenancy in common is formed between the third person and the remaining co-tenant(s). A joint tenant may transfer their interest unilaterally and without the knowledge or consent of the co-tenant(s).
If you want to terminate your joint tenancy, and still retain an interest in the property, you have a few options.
- First, you and your co-tenants can agree to convert the joint tenancy into a tenancy in common.
- Second, you may unilaterally, and without the knowledge or consent of your co-tenant(s), transfer your share to a third person who is acting as a straw-man. This straw-man will then transfer your share back to you. However, because the four unities no longer exist, you now own a share as a tenant in common. The modern trend among states is to allow unilateral conversion of a joint tenancy to a tenancy in common without the use of a straw-man. Many states now allow a joint tenant to simply transfer their own interest to themselves, thus eliminating the need for a third person as a straw-man. It is important to note that some states, like California, require the severance to be recorded for it to be valid. An unrecorded severance may reserve a right of survivorship for the non-severing tenant.
- Third, you can seek judicial partition. There are two kinds of partition:
- Partition in kind is physical division of the land. The court decides how to split up the land between co-tenants so each receives a portion equal to their share. If the court is unable to equitably split up the land, then partition by sale will be used.
- In partition by sale, the court forces the sale of the property and each co-tenant receives their share of the profits.
The advantage to terminating your joint tenancy and forming a tenancy in common is that your heirs will receive your share of the property when you die. By taking this step, you ensure that your share of the property goes to your heirs rather than to your co-tenants.
An experienced property attorney will be able to help you choose which way to terminate your joint tenancy and guide you through the process in order to ensure that your interest in the property remains protected. A probate attorney would also be useful in helping you set up a will or trust to devise your property interest to your beneficiaries.