Real Property: Concurrent Estates: Tenancy in Common

Tenancy in Common
    • Each co-tenant owns an individual part and each has a right to possess the whole.
    • Each interest is descendible, divisible, and alienable. No survivorship rights between tenants in common.
    • Presumption favors tenancy in common.
  • Rights and Duties of Co-Tenants
    • Possession. Each co-tenant is entitled to use and enjoy the whole.
      • If one co-tenant excludes another co-tenant from possession of the whole, or of any party, he has committed wrongful ouster.
    • Right from co-tenant in exclusive possession: absent ouster, a co-tenant in exclusive possession, is not liable to the others for rent.
    • Rent from third parties: A co-tenant who leases all or part of the premises to a third party must account to the others – providing them their fairshare of the rental income
    • Adverse possession: Unless ouster of other co-tenants, one co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the exclusion of the others. The hostility element of adverse possession is absent. There is no hostility because there was no ouster.
  • Theory of implied ouster – a co-tenant may acquire full title by adverse possession if he’s in exclusive possession for 20 consecutive contiguous years.
    • Carrying costs: Each co-tenant is responsible for his or her fair share of carrying costs (taxes, mortgage interest payments), based upon the individual share that he or she owns.
    • Repairs: The repairing co-tenant enjoys a right to contribution for necessary repairs provided she has told the others of their need.
    • Improvements: 1 co-tenants “improvement” could be another’s nightmare.
      • During the life of the co-tenancy, there is no right to contribution for improvements.
      • However, at partition, the improving co-tenant is entitled to a credit equal to any increase in the value caused by her efforts. At partition, the “improver” bears full liability for any decrease in value caused by her efforts.
    • Waste: A co-tenant must not commit waste (voluntary, permissive, ameliorative.) A co-tenant can bring an action for waste during life of the co-tenancy.

    • Partition: A joint tenant or tenant in common has a right to bring an action for partition. (p. 13)