Black-letter propositions
- 01
Tenants in common have fractional shares without survivorship.
- 02
Joint tenants have survivorship and traditionally require time, title, interest, and possession plus clear language.
- 03
An inter vivos transfer severs the transferring joint tenant's share; mortgage effect depends on title- or lien-theory law.
- 04
A cotenant may possess all absent ouster, must account for third-party rent, and may obtain contribution for necessary carrying costs.
- 05
Partition in kind is preferred where practical; sale is used when division is prejudicial and sale better serves owners.
Use this attack sequence under time
Frame the issue
Identify creation language and unities.
Resolve the next checkpoint
Track every transfer and lien.
Resolve the next checkpoint
Analyze possession, ouster, rent, costs, and improvements.
Finish the conclusion
Select partition remedy and accounting.
Common wrong turns
- A cotenant in possession generally owes no rent without ouster or agreement.
- One cotenant cannot lease another's share.
- Severance can unintentionally destroy survivorship.
Worked example
A and B own as joint tenants. A conveys to C, then dies.
The conveyance severed A's share. B and C are tenants in common; survivorship does not give B C's interest.
Practice this topic
Forms of concurrent ownership
Cornell says a tenancy in common is one of three concurrent estates, with joint tenancy and tenancy by the entirety. A tenancy in common typically has no right of survivorship, so a deceased owner's share goes to whomever the owner's will selects. Shares may be unequal and freely transferred, but every owner has the right to occupy the whole property.
In a joint tenancy each owner has an undivided interest and a right of survivorship, so the survivor takes the deceased owner's interest. Courts generally disfavor joint tenancies and prefer to find a tenancy in common. Tenancy by the entirety is available only to married couples, with survivorship and no transfer without the other spouse's consent.
Partition
Cornell describes partition as a division of concurrent interests so each owner may enjoy their interest in severalty. It may be voluntary or compulsory, and any co-owner in a joint tenancy or tenancy in common can end their participation by compelling partition. If the property cannot equitably be divided in kind, it is sold by judicial process and the proceeds are paid out.
Sort the facts by how the tenancy was created, whether survivorship applies, and whether a co-owner is seeking partition.
Cornell notes that even when co-owners hold unequal shares, all owners still have the right to occupy and use all of the property, and that courts generally do not intervene much in joint tenancies during their life. Those two points frame most disputes between co-owners. Ask whether the fight is over possession, over survivorship or over ending the co-ownership by partition.
Frequently asked questions
How should I analyze cotenancies, severance, accounting, and partition on the bar exam?+
Identify creation language and unities. Track every transfer and lien. Analyze possession, ouster, rent, costs, and improvements. Select partition remedy and accounting.
What are the three concurrent estates?+
Tenancy in common, joint tenancy and tenancy by the entirety, each a type of estate with shared ownership in which every owner holds a share, according to Cornell.
Does a tenancy in common have survivorship?+
Typically no. A deceased owner's share goes to the party selected in the owner's will instead of to the surviving co-owner, according to Cornell's summary.
What is the main difference between joint tenancy and tenancy in common?+
Joint tenancy carries a right of survivorship, so the surviving owners absorb a deceased owner's interest.
Who can hold a tenancy by the entirety?+
Married couples only, and neither spouse can transfer the interest without the other's consent, though each has a right of survivorship, per Cornell.
What is partition on the bar exam?+
A division of concurrent interests so each owner holds in severalty, by consent or judicial proceeding, with sale if division in kind is not equitable.