A tenancy in common is a form of joint possession of real property. Tenancy in common is the most common form of joint possession. Two or more "tenants in common" each possess a fractional share of the entire property. Although these shares may or may not be equal, each tenant in common is entitled to possess and use the entire parcel of land.
A tenancy in common interest can be transferred at any time during the holder’s life, or it can be devised after their death. Tenancy in common is the most favored form of joint possession. Most courts presume that any devise to two or more unmarried persons creates a tenancy in common. If the type of joint possession of real property is unclear, most courts assume a tenancy in common.
There are several ways that you may terminate your tenancy in common. If you want to give up your interest in the property, you may transfer your tenancy in common interest to another person through gift or sale. This will not terminate the tenancy in common, but rather substitutes a third person for you in the tenancy in common.
If you want to retain an interest in the property, but want to terminate your tenancy in common, you have a few options:
- You may agree with your other co-tenant(s) to sever it. By doing this, each co-tenant becomes sole owner of their share of the property. It is often difficult to divide property into shares that reflect the value of the percentage owned by each co-tenant.
- If you cannot agree on how to divide the property, you may terminate your tenancy in common by seeking judicial partition of the property. 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.
- A third way to terminate your tenancy in common is through ouster. Ouster is the wrongful dispossession or exclusion of a person entitled to possession of property. Each state has different requirements about what constitutes ouster. Ousting a co-tenant will terminate the tenancy in common. However, if you choose this route, expect to be sued by your co-tenants for their portion of the fair rental value, or for judicial partition. In very rare cases, an ouster can result in ownership of the entire property if the elements of adverse possession are met.
An experienced real estate attorney can help you decide whether to terminate a tenancy in common and which method to use. Your attorney would be able to guide you through the gift or sale of your tenancy in common interest or through the processes of judicial partition and ouster. Your attorney would help ensure that you receive your fair share when terminating a tenancy in common.