- Distinguishing characteristics:
- The right of survivorship when 1 joint tenant dies, his share passes automatically to the surviving joint tenants.
- A joint tenant’s interest is alienable – can be sold or transferable during lifetime. It is neither divisible or descendible.
- Creation: The 4 unities (T-TIP) – Joint tenants must take their interests:
- T = at the same TIME
- T = by the same TITLE
- I = with identical equal INTEREST
- P = with identical rights to POSSESS the whole.
- Grantor must clearly express the right of survivorship. Joint tenancies are disfavored. Thus, in addition to the 4 unities, grantor must clearly state the right of survivorship.
- Use of a straw (middle-man) to set up joint tenancy at common law.
- Severance of joint tenancy: SPAM (
, Partition, And Mortgage) Sale
- Severance and
- JT can sell or transfer her interest during her lifetime. May even do so secretly.
- EX: O conveys blackacre to “Phoebe, Ross and Monica as joint tenants with right of survivorship.” Each owns a 1/3 share + right to use and enjoy the whole.
If Phoebe sells her interest to
Later, Ross dies, leaving behind his heir, Rachel. Monica takes Ross’s share. Monica now holds 2/3 and
- This is because of the doctrine of equitable conversion. = Equity regards as done that which ought to be done…
- EX: O conveys Blackacre to “Ringo, Paul, and John and joint tenants with the right of survivorship.” = joint tenancy.
- On Jan 1, Ringo enters into a contract for sale of his interest in the joint tenancy to George, with the closing to take place on April 1. When does the severance as to Ringo’s interest occur and why? On Jan 1 under equitable conversion.
- By voluntary agreement – a peaceful way to end the relationship
- Partition in kind – a court action for physical division of the property, if in the best interest of all
- Forced sale – a court action if in the best interest of all, where Blackacre is sold, and sale proceeds are divided up proportionally.
- Severance and mortgage:
- One joint tenant’s execution of a mortgage or a lien on his or her share will sever the joint tenancy as to that now encumbered share only in the minority of states to follow the title theory of mortgages.
- By contrast, the majority of states follow the lien theory of mortgages = a joint tenant’s execution of a mortgage on his or her interest will not sever the joint tenancy.