The earliest landowners probably demarcated their property by saying, "I own my cave and 100 steps in every direction from its entrance." Over time, as the number of humans increased, the law had to evolve in order to regulate more complex ownership interests. Any form of regulation requires balancing rights and duties. And when "a house is divided," i.e., when several people share ownership of the same piece of property, it becomes especially important to explicitly define each party’s rights and delineate each party’s duties. In legal terms, there are three ways in which co-ownership (known as concurrent ownership) is structured: The parties can be (1) joint tenants, (2) tenants by the entirety or, (3) tenants in common. It is important to note that concurrent ownership is a concept that only applies to present possessory interests in the same property, so, for example, that if the same piece of property is given in a will to several people, these persons will not be considered concurrent owners.
Traditionally, joint tenants must receive their interest at the same time and through the same document, like a will or a deed. The other important characteristic of joint tenancy is survivorship; meaning, that if one of the joint tenants dies, the other co-co-owners continue to enjoy the same ownership rights. The heirs of the deceased joint tenant or those named in her will do not have the right to inherit the property. In order to create this type joint ownership, the party or parties seeking to create it must use specific language demonstrating that intent. For example, if Grandpa Adam wishes to give his apartment to grandsons Cain and Abel for them to share as joint tenants with right of survivorship, the legal document giving the apartment to Cain and Abel must specifically say something like to Cain and Abel, as joint tenants. Each joint tenant’s interest must be equal in amount. So, using the example above, Cain and Abel each must have equal, undivided one-half interests. And like a tenancy-in-common (discussed later) each joint tenant has the same the rights of ownership, i.e., each can use, occupy and possess the property at the same time. A joint tenancy can continue indefinitely unless one of the tenants does something to sever it. Certain actions (like partition, discussed below) will break the joint tenancy and automatically make the co-owners tenants-in-common.
A tenancy-by-the-entirety is a form of co-ownership that applies only to husbands and wives while they are married. It is based on the archaic common law view that husband and wife is one person for the purpose of owning property. As long as they are still married, neither the husband nor the wife separately has an interest that can be sold, mortgaged, leased or lien against; nor can the property be divided or partitioned between them. Each spouse has an undivided interest in the whole property and the right to sole ownership when the other spouse dies. Since a tenancy-by-the-entirety applies only to a husband and wife during a valid marriage, if they divorce, the tenancy-by-the-entirety is automatically converted into a tenancy-in-common with each person owning a one-half interest in the property. At the outset, husbands and wives who do not want to be tenants by the entirety, should make sure that any property they acquire while they are married is documented using language which clearly states that they do not own the property as tenants by the entirety.
A tenancy-in-common generally applies to two or more persons who are not husband and wife, who own the same property. The owners may have unequal interests or shares and may have received their interests at different times and through different means or documents. A tenancy-in-common may be specifically defined in a written agreement or by default (as discussed above in the case of broken joint tenancies and severed tenancies by the entirety.) The key difference between a tenancy-in-common and other types of co-ownership is survivorship rights. Upon death, a tenant-in-common’s interest passes to her heirs or those named in her will. There is, therefore, no right of survivorship that transfers the decedent’s interest or share in the property to the other co-owners.
Each tenant-in-common can occupy and utilize every portion of the property at all times and in all circumstances and, each co-owner is also responsible for a proportionate share of the expenses, taxes and repairs incident to property ownership. If the all of the expenses are paid by one co-owner, the other co-owners must reimburse her for their share of the costs. Or should they refuse to pay her, she may petition the court to levy a lien against their interests in the property.
Co-owners have the right to sell their interest in the property, giving it away while they are alive or transferring it to persons of their choice at death, without the consent of the other co-owners, with the buyers or inheritors sharing the same rights and duties of ownership as the co-tenant who passed on her interest. If tenants-in-common wish to terminate their joint ownership of the property they may voluntarily do so by signing an agreement to partition or they may file a court action for partition in the Probate Court or Land Court.
Petitions to Partition
Property can only be partitioned if co-tenants share a present, undivided legal interest and they may either divide the property into parcels or, if the land cannot be fairly divided, the court may order that the property be sold by private sale or public auction and apportion the proceeds equitably among the co-owners. A property can be partitioned even if there is a lease on it and someone living in a leased, partitioned property, by law, must be permitted to continue living there. Merely instituting partition proceedings does not terminate a tenancy.
Partition proceedings, like any other legal action, cost money. The court determines the reasonable expenses and charges of the proceedings. If the property is sold, these expenses and charges are paid out of the sale proceeds and in those cases where the property is divided, the petitioner (person asking for partition) pays the expenses and charges with contribution from the other parties in proportion to their respective interests, unless the court finds that a different ratio would be more equitable.
Even the most primitive conceptions of ownership probably recognized the importance of specifically defining the rights and duties of each co-owner when more than one person owns the same piece of property. The earliest assertions of concurrent ownership probably went something like, "We both own this cave. I have a right to live here and you do too. You have to clean it and I will clean it too." Today, because more and more people are co-owning property, "dividing the house" has become an even more complex task for which professionals are needed. Seniors who like to co-own property or who’d like to get their money out of a piece of property that they own with others, should contact a lawyer and/or a real estate professional. Lawyers can be instrumental in drafting the appropriate legal documents that define co-ownership, and in the event of a voluntary or court-ordered partition, lawyers can draft the requisite partition agreements or can represent petitioners in probate or land court proceedings. When "a house is divided" someone should be there to make sure that it doesn’t fall as the pieces are being put together and if/when they are being taken apart.
For more information, please contact:
Attorney John T. Gosselin
Phone: (781) 729-0313
Fax: (781) 729-2204