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Tenancy in Common Explained: Key Insights for Law Students and Junior Associates

Updated: 6 days ago


Introduction to Tenancy in Common 


Tenancy in common is a type of joint ownership of property by two or more people. Here are the key characteristics.


Shared Ownership: Each tenant in common owns an undivided interest in the entire property. This ownership stake can be equal or unequal percentages.


No Right of Survivorship: Unlike joint tenancy with right of survivorship, if one tenant in common dies, their ownership share doesn't automatically pass to the remaining tenants. It passes according to the deceased tenant's will or through the laws of intestacy (if they don't have a will).


Independent Rights: Each tenant in common has the right to occupy and use the entire property, even if their ownership share is different. They can also sell or lease their individual share without the consent of the other tenants.


Here's an analogy to understand tenancy in common: Imagine a pizza. If you own the property as tenants in common, you each own a slice (your ownership percentage), but you can all enjoy the entire pizza (the whole property) together.  However, if one of you doesn't specify what happens to their slice (ownership share) after they're gone, it won't automatically go to the other owner(s).


Here are some additional points to consider:


Tenancy in common agreements: While not mandatory, it's advisable to have a written agreement between tenants in common outlining responsibilities, usage rights, and procedures for selling the property or resolving disputes.


Benefits: This type of ownership offers flexibility as tenants can manage their share independently.


Drawbacks: Disagreements can arise if tenants in common have different visions for the property's use or sale.


Here are some common use cases for tenancy in common.


Family Property Ownership: Siblings inheriting a house from their parents might choose tenancy in common. This allows them to co-own the property while maintaining the flexibility to sell their individual share in the future, perhaps to buy their own homes.


Real Estate Investment Partnerships:  Investors might purchase a property as tenants in common, with each owning a share based on their investment contribution. This allows them to share the profits or losses from renting or selling the property.


Unmarried Couples Buying a Home:  Couples who aren't married might choose tenancy in common when purchasing a property together. This provides ownership clarity and avoids the automatic survivorship benefit present in joint tenancy.


Business Partnerships with Shared Property:  Business partners who co-own a building or equipment used for their operations might hold it as tenants in common. This allows them to share ownership and usage rights while maintaining control over their individual share.


Estate Planning with Specific Heirs:  A property owner might use tenancy in common to leave their ownership share to specific beneficiaries in their will. This allows them to designate who inherits their portion of the property, unlike joint tenancy where it would pass automatically to the remaining co-owners.


These are just a few examples, and tenancy in common can be a useful tool for various situations where multiple people want to co-own property with some degree of independence in managing their ownership stake.


Comparison with Joint Tenancy 


comparison with joint tenancy

The key differences between tenancy in common and joint tenancy lie in ownership structure, rights of survivorship, and management of ownership shares.


Ownership Structure:

Tenancy in Common:  Each tenant owns a distinct, undivided interest  in the property. This ownership share can be equal or unequal percentages (e.g., one person might own 60% and the other 40%).


Joint Tenancy:  Joint tenants hold an undivided interest  in the entire property. They don't own separate shares, but rather a collective ownership right.


Right of Survivorship:

Tenancy in Common:  There is no right of survivorship. If a tenant in common dies, their ownership share  passes according to their will or through intestacy laws (if no will exists). The remaining tenants  don't  automatically inherit the deceased tenant's share.


Joint Tenancy (with Right of Survivorship):  If one joint tenant dies, their ownership share  automatically  passes to the remaining joint tenants. This ensures the property stays within the original ownership group.


Management of Ownership Shares:


Tenancy in Common:  Each tenant has the right to  sell, lease, or gift  their individual ownership share  without  the consent of the other tenants. This allows for greater individual control.


Joint Tenancy:  All joint tenants must  agree  to sell, lease, or gift the entire property. This ensures all co-owners have a say in major decisions regarding the property.


Here's an analogy:

Tenancy in Common:  Imagine a pie. Each tenant in common owns a specific number of slices (ownership percentage). They can choose to eat their slices (sell their share) independently. If one owner passes away, their slices are distributed according to their wishes, not automatically to the remaining owner(s).


Joint Tenancy:  Think of a single cake. Joint tenants all own the whole cake together (undivided interest).  If one joint tenant leaves, their share doesn't disappear; the remaining tenants simply own a larger portion of the same cake.


In essence:


Tenancy in Common: Offers more flexibility and control over individual ownership shares, but doesn't guarantee the property stays within a specific group upon death.


Joint Tenancy: Provides automatic survivorship to ensure the property stays with the remaining co-owners, but limits individual control over ownership shares.


Advantages and Disadvantages of Tenancy in Common 


advantages and disadvantages of tenancy in common

Tenancy in common is a way for multiple people to co-own property with some key advantages and disadvantages to consider. Here's a breakdown.


Advantages:

Flexibility and Control: Each tenant owns a distinct share, allowing them to sell, lease, or gift their portion independently. This provides greater control over their investment.


Estate Planning: Ownership shares can be designated to specific beneficiaries in a will, unlike joint tenancy where it automatically passes to remaining co-owners.


Open to Unequal Ownership: Shares can be divided unequally, accommodating different financial contributions or ownership desires.


No Right of Survivorship: Prevents complications if one tenant dies. Their share passes according to their wishes, not automatically to the remaining tenants.


Potential for Diverse Ownership: Allows people with different relationships (siblings, business partners, unmarried couples) to co-own property.


Disadvantages:

Potential for Disputes: Disagreements can arise if tenants have different visions for using or selling the property. A written agreement outlining responsibilities and procedures can help mitigate this.


Uncertain Future Ownership: If a tenant dies without a will, their share might pass to unintended heirs through intestacy laws, potentially disrupting ownership plans.


Severing Tenancy: If one tenant sells their share, the new owner becomes a tenant in common, potentially introducing someone the other tenants didn't choose.


Unequal Sharing of Expenses: Maintaining the property can lead to disagreements if tenants don't contribute equally to upkeep costs based on their ownership share.


Potential Tax Implications: Each tenant is responsible for taxes on their ownership share, which can be complex to manage.


Choosing Tenancy in Common:


This type of ownership is suitable for situations where:


Flexibility and individual control are important.


Estate planning needs dictate specific inheritance of ownership shares.

Unequal ownership percentages are desired.


Co-ownership is needed between people who might not be married or have a close relationship.


Alternatives to Consider:


Joint Tenancy with Right of Survivorship: Ideal if you want the property to automatically pass to remaining co-owners upon death.


Tenancy by the Entirety: Exclusively for married couples, it offers survivorship rights and limitations on individual ownership actions.


Ultimately, the best ownership structure depends on your specific needs and goals. Consulting with a lawyer can help you choose the most suitable option for your situation.


Steps to Establish Tenancy in Common 


steps to establish tenancy in common

Here are the steps to establish tenancy in common for property ownership.


1. Deed Designation:

Clear Language:  The property deed, which grants ownership, must explicitly state "tenancy in common" to establish this type of ownership.  This ensures legal recognition of the co-ownership structure.


Ownership Percentages (Optional):  While not mandatory, the deed can specify the ownership percentage for each tenant.  This clarifies the  proportional share  each co-owner holds.  If percentages aren't specified, ownership is assumed to be equal.


Legal Representation:  Consulting a real estate lawyer is advisable  to ensure the deed accurately reflects your tenancy in common agreement and  protects your  interests.


2.  Agreement Between Tenants (Recommended):


Written Contract:  While not legally required, having a written agreement  between tenants in common is highly recommended. This agreement outlines the rights and responsibilities of each co-owner.


Key Considerations:


Financial Responsibilities: Specify how property taxes, insurance, maintenance costs, and utilities will be shared based on ownership percentages or other agreed-upon arrangements.


Usage Rights: Define how each tenant can use the property and address potential conflicts.


Dispute Resolution: Establish a process for resolving disagreements regarding the property's use, maintenance, or sale.


Exit Strategy: Outline procedures for a tenant selling their ownership share or what happens if one co-owner dies (especially if they don't have a will).


3.  Recording the Deed:


Filing with Local Authorities: Once the deed is signed by all tenants in common, it must be filed with the appropriate government office (usually the county recorder's office) in the jurisdiction where the property is located. This publicly records the ownership structure.


By following these steps, you can establish tenancy in common for property ownership. Remember, a well-drafted deed and a comprehensive agreement between tenants can help minimize future conflicts and ensure a smooth co-ownership experience.


Severing a Tenancy in Common 


severing a tenancy in common

There are several ways to sever a tenancy in common, transforming the ownership structure. Here's a breakdown of the methods.


1. Voluntary Sale by a Tenant:


Selling Ownership Share:  A tenant in common can choose to  sell  their ownership stake  to another person. This new owner then becomes a tenant in common with the remaining original co-owners.


Impact:  The original co-ownership structure changes as the new owner joins.  It's crucial to ensure the  sale  complies with any  existing agreement  between the tenants regarding selling shares.


2. Partition Action:


Legal Process:  Tenants in common can file a lawsuit for partition in court.  This legal action  forces the sale  of the property, with the proceeds  divided  among the tenants  according to their ownership percentages.


Use Cases:  This option might be used if  co-owners  cannot agree on how to use the property or if one tenant  wants  to sell  but the others don't.


3.  Written Agreement with All Tenants:


Mutual Consent:  All tenants in common can agree  in writing  to  sever  the tenancy.  This written agreement  might  specify how the property will be divided or sold,  depending on the  co-owners'  desires.


Flexibility:  This method allows for  custom solutions  based on the specific situation. It can be used for  dividing the property  into separate parcels (if possible) or  selling  it with a pre-determined distribution of proceeds.


4.  Involuntary Sale (through foreclosure):


Default on Loan:  If a co-owner defaults on a loan secured by the property, the lender might  foreclose  on the property.  This forced sale severs the tenancy in common, with the proceeds used to  pay  the  loan  and  distribute  remaining funds  among the  co-owners.


Unintended Outcome:  This is not a preferred method as it results from a negative financial situation and may not reflect the co-owners'  wishes  for the property.


Important Considerations:


Reviewing Existing Agreements:  Before attempting to sever tenancy in common,  review  any  existing agreements  between the co-owners. These agreements might  outline  specific procedures  or restrictions  regarding  selling shares  or  partitioning  the property.


Legal Advice:  Consulting a real estate lawyer  is highly recommended  throughout the process of severing tenancy in common. They can ensure the chosen method complies with legal requirements and protects your interests.


By understanding these methods and seeking legal guidance, tenants in common can effectively sever their ownership structure when their circumstances change.





In Conclusion 


Tenancy in Common: Key Points and Practical Tips for Law Practitioners

Key Points:


Ownership Structure: Tenants in common own distinct, undivided interests (shares) in a property. These shares can be equal or unequal.


No Right of Survivorship: Unlike joint tenancy, a deceased tenant's share passes according to their will or intestacy laws, not automatically to remaining co-owners.


Management Flexibility: Each tenant can sell, lease, or gift their share independently.


Potential for Disputes: Disagreements can arise regarding usage, maintenance, or selling the property.


Practical Tips:


Drafting Clear Deeds: Ensure the deed explicitly states "tenancy in common" and specifies ownership percentages if desired.


Encourage Tenant Agreements: Recommend written agreements outlining responsibilities, usage rights, dispute resolution, and exit strategies.


Advise on Recording Deeds: Guide clients on filing the deed with the appropriate local authorities.


Anticipate Severance Scenarios: Discuss potential methods for severing tenancy in common (voluntary sale, partition action, written agreement, or involuntary sale).


Highlight Importance of Legal Representation: Advise clients to seek legal counsel throughout the process, especially when disputes arise or during severance.


Additional Tips:


Review Existing Agreements: Before any action, review existing agreements between tenants to ensure compliance with outlined procedures or restrictions.


Consider Tax Implications: Advise clients on potential tax consequences related to their ownership share and potential changes upon severance.


Stay Updated on Legal Developments: Keep up-to-date on legal rulings and interpretations related to tenancy in common within your jurisdiction.


By understanding these key points and utilizing these practical tips, law practitioners can effectively guide their clients through tenancy in common issues, helping them establish clear ownership structures, minimize conflicts, and navigate potential severance scenarios.




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