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🎧 EPISODE SUMMARY 🎧
Concurrent ownership exists when more than one person owns rights in the same property at the same time. The three principal forms are tenancy in common, joint tenancy, and tenancy by the entirety.
A tenancy in common is the modern default. Each cotenant owns a separate fractional interest, possesses an equal right to use the whole property, and has no survivorship right. The interest may ordinarily be transferred during life or at death.
A joint tenancy includes a right of survivorship. When one joint tenant dies, the surviving joint tenants ordinarily continue ownership without the deceased tenant’s interest passing through a will. Traditional law required the unities of time, title, interest, and possession. Clear survivorship language is generally important.
A joint tenant may ordinarily sever the joint tenancy by transferring that tenant’s interest. Mortgage severance may depend on whether the jurisdiction follows title theory or lien theory.
A tenancy by the entirety is available to married spouses in some jurisdictions and typically includes survivorship, equal possession, restricted unilateral severance, and protection from some individual creditors.
All cotenants generally have an equal right to possess the whole property regardless of ownership percentage.
An ouster occurs when one cotenant wrongfully excludes another. Mere exclusive occupancy ordinarily is insufficient. Ouster may affect rent liability, ejectment, partition, and adverse-possession analysis.
A cotenant in personal possession ordinarily does not owe rent to nonoccupying cotenants absent ouster, agreement, or statute. A cotenant who receives rental income from third parties generally must account for the other owners’ proportionate shares.
Necessary expenses such as taxes, certain mortgage payments, insurance, and essential repairs may support contribution. Voluntary improvements ordinarily do not, although the increase in property value attributable to an improvement may be credited during partition or accounting.
A cotenant may also be liable for waste that harms common property.
A cotenant ordinarily may seek partition. Partition in kind physically divides the property and has historically been preferred when practicable. Partition by sale converts the property into proceeds when physical division is impracticable or would substantially impair value.
Finally, adverse possession by one cotenant against another is difficult because every cotenant begins with a lawful right to possession. Clear ouster or repudiation is generally required before possession becomes hostile.
The central analytical principle is:
Concurrent ownership divides ownership interests without necessarily dividing possession.
A student who keeps ownership percentage, possession, income, expenses, survivorship, transfer, and partition separate will be able to analyze most concurrent-ownership problems with precision.
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