Concurrent Estates

By Gracie Davis – Deputy Executive Assistant at West Virginia Senior Legal Aid, Inc.

*For more information on types of estates and interests, please see our article "Modern Real Property Estates and Interests."*

Have you ever thought about buying a house with a family member or an apartment with your bingo buddy? It may seem like it would be calming and fun, but it may also be a headache. Owning property with someone else, especially as one gets older, comes with perks as well as pesky problems. This article will break down the basics regarding the types of concurrent ownership of real property, rights and responsibilities related to concurrent ownership, and partitions, so you are better equipped for any hiccups along the way.

Under concurrent ownership, each co-tenant has the right to possess and use the entire property. However, interests in the property do not necessarily have to be equal among each co-tenant. When the property is sold, the proceeds are distributed based on each co-tenant’s interest. To exemplify equal interests, if Tenant A and Tenant B have a 1/2 interest, then the proceeds will be divided equally, with each co-tenant getting 1/2. To exemplify unequal interests, if Tenant A has a 2/3 interest and Tenant B has a 1/3 interest, then Tenant A will get 2/3 of the proceeds and Tenant B will get 1/3 of the proceeds. Additionally, there are 3 types of modern concurrent estates: (1) tenancy in common, (2) joint tenancy, and (3) tenancy by the entirety.

First, a tenancy in common entails each co-tenant having an undivided (even if one’s share is less than another’s), fractional interest. Tenancies in common are freely alienable (i.e., can be sold or transferred), devisable (i.e., can be transferred via a will or testament), and descendible (i.e., can be inherited by another) for each co-tenant. When an estate is conveyed or devised to 2+ unmarried individuals, a tenancy in common will be assumed (even with supporting evidence), unless there is specific and correct language in the deed that creates a joint tenancy.

Second, a joint tenancy is like a tenancy in common except each co-tenant has a right of survivorship. For example, if Tenant A dies, Tenant B automatically becomes the sole owner and gets Tenant A’s share. Thus, a joint tenancy interest is neither devisable nor descendible. However, the interest is alienable, and the joint tenancy can be severed and transformed into a tenancy in common through interest transfer. As previously stated, a tenancy in common will be assumed unless there is specific and correct language, so an example of language in a deed that creates a joint tenancy is “I grant this to Patrick, Gracie, Liz, and Lyric as joint tenants.”

At common law, joint tenancy is only created when the 4 unities are present: (1) time (i.e., all joint tenants must acquire interests at the same time); (2) title (i.e., all joint tenants must acquire the estate by the same instrument); (3) interest (i.e., all joint tenants must have same shares in the estate that are equal size and duration); and (4) possession (i.e., all joint tenants must have an equal right to possess, use, and enjoy whole estate). In contemporary times, courts are trying to steer away from these unities.

Third, a tenancy by the entirety is like a joint tenancy (including the right to survivorship) except it cannot be severed, and it is only for married couples. Tenancy by the entirety arises only when the 5 unities are present: (1) time; (2) title; (3) interest; (4) possession; and (5) valid marriage. Some states assume a tenancy by the entirety when an estate is devised or descended to a married couple, whereas other states require specific language in a deed. An example of language in a deed that creates a tenancy by the entirety is “I grant this estate to Gracie and Patrick as tenants by the entirety.” There are only 3 ways to terminate a tenancy by the entirety: (1) divorce; (2) death; and (3) agreement of both spouses.

As a co-tenant, one should be knowledgeable about the related rights and responsibilities. All co-tenants are entitled to proportionate shares of rents and profits. To seek one’s share, one must file an accounting action. Typically, a co-tenant in possession of the property does not owe rent to a co-tenant out of possession – that is, unless the co-tenant in possession ousts the other co-tenant (i.e., excludes another co-tenant from the property).

On the other hand, co-tenants must make proportionate contributions to the estate’s expenses. To demand reimbursement, a co-tenant must file a contribution action. However, if a co-tenant makes improvements to the estate without the other co-tenants’ consent, the improver may not demand reimbursement. Yet, the improver is entitled to the improvement’s value upon the estate’s sale.

Any tenant in common or joint tenant has the right to sue for partition of the property. A partition suit judgment terminates a co-tenancy and distributes its assets. One may partition in kind (i.e., physically divide the property) or sometimes partition by sale (i.e., sell the property and divide the proceeds among the former co-tenants). As alluded to, partition by sale as a remedy is not as common because many jurisdictions disfavor it. Partition by sale may only be forced when the land cannot be conveniently partitioned in kind, the sale will result in the promotion of 1+ parties’ interests, and the sale will not prejudice other parties’ interests. Furthermore, factors to consider in forcing partition by sale include (1) economic interests and costs, (2) longstanding family ownership, and (3) sentimental or emotional interests.

As you can see, various types of concurrent ownership and ways to handle them exist. It is crucial to note the differences and the respective languages of each kind. For further aid, please get in touch with a licensed attorney. West Virginia Senior Legal Aid is dedicated to defending seniors' rights.