Concurrent estates: joint tenancies

Question 1

Joint tenancy: creation

Answer 1

A joint tenancy is a concurrent estate with right of survivorship.

It is created by a clear expression of intent with survivorship language—e.g., “joint tenants with a right of survivorship.”

Question 2

Joint tenancy: title theory

Answer 2

Under the title theory, granting a mortgage severs title—and thus destroys the joint tenancy.

Question 3

Joint tenancy: intermediate title theory

Answer 3

Under the intermediate title theory, granting a mortgage does not destroy the joint tenancy until the mortgagor defaults, at which point title theory applies.

Question 4

Joint tenancy: lien theory

Answer 4

Under the lien theory—the majority rule—granting a mortgage does not destroy the joint tenancy:

(1) Thus, if one joint tenant grants a mortgage in her interest and then dies, her death eliminates the mortgage because her interest passes to the other joint tenants.
(2) Similarly, a judicial lien on one joint tenant’s interests in a property terminate on that joint tenant’s death.

Question 5

Joint tenancy: lease of an interest

Answer 5

Some jurisdictions treat leases as a severance, whereas others treat as a temporary suspension of the joint tenancy.

Question 6

Tenancy by the entirety

Answer 6

Tenancy by the entirety is a joint tenancy between married people, adding unity of person (marriage) as the fifth unity.

Tenants by the entirety cannot alienate or encumber their shares without the consent of their spouse.

Question 7

Tenancy by the entirety: creation

Answer 7

Creation of a tenancy by the entirety requires the magic words “tenancy by the entirety, with a right of survivorship.”

Question 8

Joint tenancy: four unities

Answer 8

Joint tenancies require four unities (“PITT”):

(1) Possession, i.e., equal rights to possess the whole of the property;
(2) Interest, i.e., equal shares;
(3) Time, i.e., joint tenants receive their interests at the same time;
(4) Title, i.e., joint tenants receive their interests in the same instrument of title;

Severance of any unity, e.g., by inter vivos transfer by all but one of the joint tenants, will convert the estate into a tenancy in common.

Question 9

Alienation

Answer 9

Generally, a joint tenant may freely alienate her interest in the joint tenancy by inter vivos transfer—even without the consent of the other joint tenant.

But she may not devise her interest in a will.