Right of Survivorship:
The Four Unities:
A joint tenancy is a form of concurrent ownership where each co-tenant owns an undivided share of the property just as in a tenancy in common. The sole difference in practical law between the two types of tenancies is that joint tenants have rights of survivorship over the other tenant’s share of the property. The right of survivorship gives the surviving co-tenant a superior right to the property upon the death of the co-tenant than even the creditors of the deceased co-tenant. For example:
- Ralph and Norton own an apartment building as joint tenants. Ralph writes a will in which he leaves all of his property, specifically including his interest in the apartment building, to Alice. Ralph then dies. In spite of the will, the entire apartment building goes to Norton because he has a right of survivorship on Ralph’s share.
- Ralph and Norton own an apartment building as joint tenants. Ralph runs up a $25,000 bill at the Royal Order of the Raccoons bar and restaurant and doesn’t pay the bill. When he dies, the restaurant sues Ralph’s estate to collect the $25,000. It turns out that Ralph has no other assets when he dies, except for his interest in the apartment building. Nevertheless, the restaurant cannot collect any interest in the building. Since Norton owned a right of survivorship in the apartment at the time of Ralph’s death, he automatically gets the apartment at Ralph’s death and the restaurant cannot collect any of the interest in the building.
As with the tenancy-in-common, a joint tenancy can be created in three or more people. If one of the three people dies, his or her interest is shared by the remaining joint tenants. For example:
Ralph owns an apartment in fee simple absolute. He conveys his apartment to “Alice, Norton and Trixie as joint tenants with rights of survivorship.” Alice, Norton and Trixie are now joint tenants. If Alice dies, then Norton and Trixie will share the portion that Alice leaves over. Thus, Trixie and Norton will each own a one-half interest as joint tenants.
Recall that a transfer to two or more people presumptively creates a tenancy-in-common. To overcome this presumption, there must be clear intent on the part of the grantor. The easiest way to manifest this intent is to simply say something like “To A and B as joint tenants with rights of survivorship.” However, no specific language has to be used and surrounding circumstances can be used to demonstrate the grantor’s intent.
Because joint tenancies are considered more “concurrent” that tenancies-in-common, the requirements for the creation and maintenance of a joint tenancy are much stricter than those for a tenancy-in-common. In fact, to create a joint tenancy, there are four elements that must be satisfied: (These four elements are sometime known as the “four unities.”)
Unity of Time
The first unity is the “unity of time.” As is implied by the name, this element requires that each joint tenant take his or her share at the exact same time. For example:
Ralph conveys a one-half interest in his apartment to Norton. A month later, he conveys his remaining one-half interest in his apartment to Alice. Even if Ralph intended that Alice and Norton be joint tenants, this is not possible because they received title to the apartment at different times. Instead, Alice and Norton share a tenancy-in-common in the apartment.
Unity of Title
This second unity requires that all joint tenants acquire title by the same instrument. This can be a deed, a will, a trust or any other document that can convey property. In addition, two tenants can be joint tenants if they together acquire title to a parcel by adverse possession. (Adverse possession will be discussed in detail in a subsequent chapter.) For example:
The Wicked Witch gives a deed to Hensel, giving him a one-half interest in the Gingerbread House, but it is only effective at the time of her death. In her will, the Wicked Witch leaves the other one-half interest in the Gingerbread House to Gretel, and she specifically writes that Gretel should be a joint tenant with Hensel. Hensel and Gretel are only tenants-in-common with each other. Since they did not take title via the same instrument, Hensel and Gretel are not joint tenants. They are tenants-in-common.
At common law, a person could not convey land to himself. Therefore if a person owned an acre of land and wanted to create a joint tenancy with another person, he could not simply draw up a deed conveying the property to himself and the other person. This created a problem, because it left no clear cut way for a property owner to create a joint tenancy with another person.
To circumvent this problem, the owner could set up a “straw man” and convey the property to this person, and then immediately have the “straw man” convey the property back to the original owner and the party with whom the original owner wanted to share the property, as joint tenants. Modern statutes have, for the most part, done away with this and they allow a person to convey land to himself so as to be able to create a joint tenancy with someone else. For example:
Batman owns the Bat Cave. He would like to make sure that Robin is his joint tenant so that if Batman dies while fighting crime, Robin would automatically gain title to the Bat Cave. Under the old rule, Batman could not accomplish this directly. Instead, he would have to convey the Bat Cave to Alfred (the “straw man”). Alfred would then, in turn, convey the Bat Cave back to “Batman and Robin as joint tenants.” Under the modern rule, all this is not necessary. Instead, Batman could simply convey the Bat Cave to “Batman and Robin as joint tenants with rights of survivorship” and this would be effective to create the joint tenancy. See
Riddle v. Harmon, 102 Cal.App.3d 524 (1980).
Unity of Interest
The third unity requires that each tenant must have an equal interest in the property. This means that each co-tenant must have the exact same interest as all of the others in terms of physical ownership (each must own an identical percentage of the interest in the property) and chronological ownership (each must have an identical estate). For example:
- The Wicked Witch conveys the Gingerbread House, 40% to Hensel and 60% to Gretel “as joint tenants with rights of survivorship.” This language is ineffective. Since Hensel and Gretel are not each given the same percentage of the House, they cannot be joint tenants. Instead, they will take the House as tenants-in-common in the proportions set out by the Wicked Witch.
- The Wicked Witch conveys the Gingerbread House “One half to Hensel and his heirs and one half to Gretel for life". Since Hensel and Gretel do not have equal estates (Hensel has a fee simple absolute in his share, but Gretel has only a life estate in hers), they cannot be joint tenants in the House. Once again, they are tenants-in-common.
Unity of Possession
The fourth unity is the unity of possession. This requires that each joint tenant have the right to possess the entire property. Note that, in this respect, the joint tenancy is similar to the tenancy-in-common. The difference is that with the tenancy-in-common, equal right to possession was presumed, but could be overcome by clear intent of the parties. With a joint tenancy, equal right of possession is a necessary element. For example:
The Wicked Witch conveys the Gingerbread House to Hensel and Gretel in equal shares “as joint tenants with rights of survivorship,” but provides that Hensel shall not have the right to live in the House from June through September because she is afraid that he will eat the walls of the house when they are so warm from the summer sun. Hensel and Gretel will take the House as tenants-in-common.
A joint tenant has the right to convey his or her interest in the property to anyone he or she wants to. However, once this is done, the joint tenancy is destroyed with respect to the share of the property that has been transferred. This is because the transfer breaks up the unities of time and title as it creates an interest in the new recipient who received his or her interest later and with a different instrument than did the original joint tenants. For example:
Greg and Peter own a house in Arizona as joint tenants. Peter sells his half to Bobby and conveys the half with a deed he gives to Bobby after the sale. Since Bobby obviously received his interest well after Greg received his interest and since he received his interest via a different instrument than did Greg, Bobby and Greg cannot be joint tenants. Instead, they are tenants-in-common, with each owning a one half interest.
As with the tenancy-in-common, a joint tenancy can exist in three or more people. Obviously, each party must have an interest that is equal to one divided by the total number of joint tenants. If one of the joint tenants dies, the others share his or her interest and they remain joint tenants with each other. Also, if a joint tenant sells or transfers his or her share, thus breaking up the joint tenancy as far as he or she is concerned, the other owners can remain joint tenants with each other. For example:
- Marsha, Jan and Cindy own a ranch in Arizona as joint tenants. By definition, each owns a one-third interest. If Marsha dies, then Jan and Cindy each get half of Marsha’s share. Also, since Marsha’s death does not break any of the unities, Jan and Cindy can remain joint tenants. Thus, Jan and Cindy would remain joint tenants, with each owning a one-half interest in the ranch.
- Marsha, Jan and Cindy own a ranch in Arizona as joint tenants. Jan decides to sell her share to Peter. Peter does not become a joint tenant with Marsha and Cindy, because his ownership started later than did theirs. Still, Marsha and Cindy can remain joint tenants with each other. Thus, Marsha and Cindy would be joint tenants on 2/3 of the ranch, while, together, they would be tenants-in-common with Peter, who would own a one-third interest in the ranch. Thus, if Marsha dies, Cindy gets Marsha’s share. If Cindy dies, Marsha gets Cindy’s share. But, if Peter dies, Peter’s heirs get his share.
Although a sale definitely breaks up a joint tenancy, it is unclear whether a joint tenant’s mortgaging his or her share breaks up a joint tenancy. This issue will be taken up later in the course in the chapter on mortgages. It is generally held though, that leasing out the property will not break up a joint tenancy.
Perhaps the most common form of the joint tenancy today is the joint bank account, which has nothing to do with real property at all. A joint bank account is designed to work as a joint tenancy so that, during the lifetime of both account holders either can withdraw money in the account. Upon the death of one of the parties, the proceeds still in the account pass directly to the other holder (or holders) of the account.