Cotenancy and severance

The Four-Unity Line: Choosing the Cotenancy Before Anything Happens

Cotenancy analysis begins by identifying whether the owners hold as joint tenants, tenants in common, or tenants by the entirety, because that classification controls survivorship, unilateral transfer, and partition. The key distinction is not merely whether several people possess the property; every cotenant generally has a right to possess the whole. The decisive questions are how the interest was created, whether survivorship exists, and whether one owner may act alone.

A joint tenancy requires four unities:

1. Time: the interests are created at the same time.
2. Title: the interests arise from the same instrument.
3. Interest: the owners receive equal interests of the same type and duration.
4. Possession: each owner has an equal right to possess the whole.

A joint tenancy also carries the right of survivorship. When one joint tenant dies, the surviving joint tenants take the deceased tenant’s interest automatically; the deceased tenant cannot devise that interest to someone else. Joint tenancy therefore concerns both present ownership and the event of death.

A tenancy in common requires no unities except possession in the practical sense that each cotenant has a right to possess the whole. The cotenants may acquire their interests at different times, by different instruments, and in unequal shares. There is no right of survivorship. A tenant in common may transfer, devise, or mortgage that tenant’s undivided share without changing the other cotenants’ shares.

A tenancy by the entirety is available only to married spouses and requires the four joint-tenancy unities plus the fifth unity of marriage. It also includes survivorship. The spouses are treated as one ownership unit: neither spouse may unilaterally convey or encumber the entire property, and neither may unilaterally partition it during the marriage. A divorce generally converts the tenancy by the entirety into a tenancy in common, although the exact effect can depend on governing law or the divorce decree.

The principal near miss is equal possession versus equal ownership. A tenant in common with a 20% share may possess the entire parcel, while a joint tenant’s equal share is tied to the four unities and survivorship. Another near miss is joint tenancy versus tenancy by the entirety: both have survivorship, but only tenancy by the entirety requires marriage and protects the ownership unit from unilateral action by one spouse.

When a deed does not clearly create a joint tenancy or tenancy by the entirety, the usual result is a tenancy in common. Language such as “with right of survivorship” strongly indicates a joint tenancy, but the creation must still satisfy the applicable unity requirements. This is closed-book: you must be able to state the four joint-tenancy unities and the additional unity for tenancy by the entirety without legal resources.

Partition as the Exit Right: Division, Sale, and the Limits on Leaving

Partition is the remedy that ends cotenancy by replacing undivided ownership with separate ownership or sale proceeds. A tenant in common or joint tenant generally has an absolute right to seek partition. The other cotenants cannot defeat that right merely by arguing that partition is inconvenient or that the property has sentimental value.

Partition may occur in three ways:

1. Voluntary partition: the cotenants agree to divide the land or sell it and divide the proceeds.
2. Partition in kind: a court physically divides the land into separate parcels.
3. Partition by sale: a court orders the property sold and divides the net proceeds according to the owners’ shares.

Partition in kind is generally preferred when the land can be divided fairly without materially reducing its value or impairing the owners’ interests. Partition by sale is appropriate when physical division is impracticable, would substantially reduce value, or would unfairly prejudice the cotenants. A sale does not necessarily produce equal proceeds: the distribution follows the ownership shares, subject to valid liens, sale expenses, and accounting adjustments.

Partition has important limits. A tenant by the entirety cannot obtain unilateral partition while the marriage continues because neither spouse owns a separately partitionable share. A valid agreement not to partition may postpone the right only for a reasonable period. Upon divorce, the former spouses ordinarily hold as tenants in common and may seek partition; upon the death of one spouse, the survivor ordinarily takes the property by survivorship.

Partition and severance are related but not identical. A partition judgment ends the undivided cotenancy. A severance changes a joint tenancy into a tenancy in common without necessarily dividing the land. For example, one joint tenant’s deed to a third party severs the joint tenancy, but the grantee and the remaining joint tenants still own one undivided parcel until partition.

At partition, the court may conduct an accounting. The accounting adjusts for rents, profits, taxes, mortgage payments, necessary repairs, and other credits or charges among the cotenants. Thus, the final distribution may differ from the simple arithmetic of each recorded ownership percentage.

The Severance Trigger: Deeds, Liens, Mortgages, and Leases

The first question is whether the act changes title or merely creates a claim against an existing interest. A conveyance ordinarily changes the ownership relationship; a judgment lien ordinarily does not. A mortgage depends on whether the jurisdiction follows lien theory or title theory. A lease usually transfers possession for a period, but the majority rule treats it differently from a deed.

Conveyance. A joint tenant may convey the tenant’s undivided interest to a third party. That deed destroys the transferring tenant’s joint tenancy because the grantee did not receive the interest under the same title and at the same time as the original joint tenants. The grantee becomes a tenant in common with the remaining joint tenants. If A, B, and C are joint tenants and A conveys to D, D is a tenant in common with B and C, while B and C remain joint tenants between themselves as to their remaining interests.

A conveyance by a tenant in common does not sever anything because a tenancy in common already lacks survivorship. The transferee simply replaces the transferor as a tenant in common. A conveyance by all cotenants can create a new joint tenancy if the new instrument and applicable law satisfy the required unities and clearly express survivorship.

Judgment lien. A judgment lien against one joint tenant’s interest ordinarily does not sever the joint tenancy. If the debtor joint tenant dies before execution, survivorship generally eliminates the debtor’s interest and the lien attached to it. If the creditor instead executes on and sells the debtor’s interest, the purchaser takes as a tenant in common, which severs the joint tenancy. The near miss is therefore lien versus execution sale: the lien alone does not sever; the forced sale can.

For a tenant in common, a judgment lien attaches to the debtor’s undivided share. It does not alter the other cotenants’ interests. For tenancy by the entirety, an individual creditor of one spouse generally cannot reach the property because the spouses hold it as one ownership unit.

Mortgage. Under the majority lien theory, a mortgage creates a lien rather than transferring title, so a mortgage by one joint tenant does not sever the joint tenancy. Under title theory, the mortgage transfers title to the mortgagee as security and therefore severs the joint tenancy. The mortgagee and the other joint tenants become tenants in common under that approach. The fact that separates the results is the jurisdiction’s mortgage theory, not the parties’ use of the word “mortgage.”

A mortgage signed by both spouses generally encumbers the entirety property without converting it into a tenancy in common. One spouse’s separate mortgage normally cannot sever the tenancy by the entirety.

Lease. Under the majority modern rule, a lease by one joint tenant does not sever the joint tenancy. The lease transfers a temporary possessory interest, not the tenant’s title, and the joint tenancy remains subject to the lease. A minority or common-law approach treats a lease by one joint tenant as severing the joint tenancy. Therefore, a fact pattern must identify the governing rule if it expects the lease to decide the result. A lease by a tenant in common does not “sever” the cotenancy because no survivorship exists to sever.

Possession and Accounting: The Cotenant Who Occupies, Excludes, or Pays

Every cotenant has the right to possess the entire property, not merely a physical portion matching that cotenant’s percentage. One cotenant may occupy the whole parcel without automatically owing rent to the others. The other cotenants’ mere failure to occupy is not an ouster.

A cotenant in possession generally owes rent or profits to the other cotenants in three principal situations:

• The cotenant agreed to pay rent.
• The cotenant ousted another cotenant.
• The cotenant leased the property or a portion of it to a third party and collected rent or profits.

When a cotenant leases the entire property without the others’ consent, the lease is ordinarily effective only to the extent of the lessor-cotenant’s own interest. The other cotenants may demand their proportionate share of rents or profits. The occupying cotenant may generally offset reasonable expenses properly chargeable against those rents.

Ouster is a wrongful exclusion of a cotenant from possession. It requires more than exclusive occupancy. The occupying cotenant must engage in conduct clearly denying the other cotenant’s right to enter or possess, and the excluded cotenant must receive notice of that denial or have knowledge of facts making the denial clear. A refusal to admit the cotenant after a demand for possession is classic evidence of ouster. Mere silence, exclusive use, or the fact that one cotenant pays all expenses is ordinarily insufficient.

After ouster, the excluded cotenant may recover the fair rental value of the excluded share, even if the occupying cotenant did not actually collect rent. Before ouster, a nonpossessing cotenant ordinarily cannot recover rent merely because another cotenant occupied the whole property.

Contribution concerns necessary expenses, not ordinary improvements. A cotenant who pays more than that cotenant’s proportionate share of property taxes, mortgage obligations on the common property, insurance, or necessary repairs may seek contribution from the others. The obligation is generally allocated according to ownership shares.

A cotenant who makes an improvement without the others’ consent ordinarily cannot compel them to contribute its cost. At partition, however, the improver may receive an equitable credit for the improvement’s contribution to the property’s value, while also bearing the risk that the improvement added little or no value. The near miss is necessary repair versus improvement: repairing a leaking roof supports contribution; constructing an unauthorized addition generally does not.

O and P conveyed Blackacre to A and B “as joint tenants with right of survivorship.” A later granted Bank a mortgage on A’s interest in a lien-theory jurisdiction, then conveyed that interest by deed to C. B later leased B’s undivided interest to Tenant, and a judgment creditor recorded a lien against B. No partition has occurred.

Recurring errors arise when a fact pattern makes one act look more powerful than it is:

• Treating a judgment lien as an execution sale incorrectly turns a lien into a severance.
• Treating equal possession as proof of equal shares ignores the distinction between a joint tenancy and a tenancy in common.
• Treating a lease as automatically equivalent to a deed overlooks the majority rule that a lease by one joint tenant does not sever.
• Allowing one spouse to partition during marriage ignores the fifth unity and the unity of ownership in tenancy by the entirety.
• Charging rent for every period of exclusive occupancy ignores the requirement of ouster, agreement, or third-party rent.

Three Pressure Tests: Ownership, Exit, and Accounting

High-Yield Points - ⚡ Biggest Takeaways

Identify survivorship and the unities before analyzing any cotenant’s later act. A deed or execution sale can sever a joint tenancy; a lien alone ordinarily cannot. Exclusive possession is not ouster, but necessary expenses remain subject to contribution.