Introduction to Concurrent Ownership

In the previous chapter, we discussed the division of real property in terms of time. That is, we discussed situations in which one party held a present interest in property and one or more parties held future interests in the same property. Thus, although the property was possessed entirely by one person, the ownership of the property for the time period lasting from the present time until perpetuity was split among two or more people.

Of course, that change in possession can be triggered by the death of a party (i.e., in the case of a life estate), by the expiring of a period of time (i.e., in the case of a term of years) or by the occurrence or non-occurrence of an event or condition (i.e., In the case of a defeasible fee simple).

In this chapter we will discuss situations in which two or more people share a present interest in the same parcel of land. As we will discuss, there are many different forms of concurrent ownerships in land. However, there is one common thread that applies to all concurrent ownerships. In the absence of an agreement to the contrary, every co-tenant of a concurrent estate has the equal right with all the other co-tenants to possess and use at the same time any and all of the property. For example:

Ross conveys an apartment to “Monica and Chandler.” Monica and Chandler are co-tenants in the apartment. Later in the chapter we will discuss what kind of tenancy they each have (it will depend on the surrounding circumstances). However, regardless of what kind of tenancy they share, Monica and Chandler each enjoy a right to possess the entire property in perpetuity. Neither can throw the other off the property and neither can demand that the other “stick to his or her side” of the property. There are no “sides.” Each person owns the right to possess the whole property.

This is the case even if one party owns a larger percentage than the other in a concurrent ownership. For example:

Ross conveys an apartment, “20% to Chandler and 80% to Monica.” Even though Monica owns 80% of the apartment, her right to possession and enjoyment of the property is only equal to that of Chandler. Her 80% ownership means that she will have the right to 80% of any rent that is taken in from tenants of the apartment and it means that she will receive 80% of the proceeds of any future sale of the apartment. However, in terms of the right to possession itself, Chandler has an equal and full right to possess the apartment.

It is important to note that if property is conveyed to two or more people, the presumption will be that this conveyance is to each of the parties in equal shares. This presumption can be rebutted by surrounding circumstances. For example:

Ross conveys an apartment to “Monica and Chandler.” The presumption will be that Ross meant to transfer a 50% interest in the apartment to Chandler and 50% to Monica. However, if Monica can show that Ross was selling the apartment for $200,000 and that she paid $160,000 and Chandler only paid $40,000, then she can probably rebut that presumption and thus prove that Ross intended to give her 80% of the interest in the apartment and Chandler only 20% of the apartment. Of course, it would be very sloppy of Monica to allow this to happen. She should rather make sure that the document that creates the conveyance states that she is getting 80%. However, this rule would take effect if, for whatever reason, she did not do so.

There are three types of joint tenancies that are relevant today: the tenancy-in-common, the joint tenancy and the tenancy by the entirety. Each of these three will be the focus of a subchapter in this chapter. In addition, a subchapter will be devoted to the community property rules, which deal with concurrent ownership of property between husband and wife. Finally, we will examine the rights and duties that co-tenants have with regard to each other.