Co-Ownership of Land: Tenancy in Common

Joint tenancy requires four unities, if those are not ALL satisfied, it becomes a Tenancy in Common.

•Tenants in common can be between two or more persons.

•Ownership can be held in equal shares or unequal shares. For example, John could hold 50% ownership, Mary 25% and Tallulah 25%.

•Co-tenants have the right to possess the property by one tenant or by all the tenants. Tallulah can live in the property by herself or share the property with John and Mary. Neither tenant can exclude the other.

•Upon death, the interest of the deceased co-tenant will pass to the co-tenant's heirs. If Tallulah died, John would still hold 50%, Mary would own 25%, but Tallulah's 25% would pass to whomever she designated in her will.

•To dissolve the tenancy in common, one or more co-tenants can buy out the others.

•The property can be sold and the proceeds distributed equally among the owners.


Creating a tenancy in common
Joint tenancy is presumed unless there are words indicating tenants in common. It can also be clearly stated by using words such as “to AB and CD in equal shares” or “AB and CD as tenants in common.” The share of each tenant is decided by the law in one of four ways:
• Deed or Will eg: “To AB one quarter undivided share and to CD three quarter undivided share”;
• Agreement: Any agreement between the owners as to their individual share;
• Contributions: The contribution to the deposit (if any) can determine the share a person holds;
• Equity: This is work done improving the property and increasing its value; but this must be more than general maintenance and decoration —it must be something out of the ordinary, going beyond what would normally be expected of a co-owner such as adding a room to a house or changing a roof.

Breaking a tenancy in common
The shares can be changed by agreement. This must be in the form of a deed.

Rights and duties of co-owners
Co-owners, irrespective of the type of tenancy, share certain rights relative to each other and to the property, except to the extent they have modified these rights through an agreement among themselves:
• Right of Access: Each owner has an unrestricted right of access to the property and where one co-owner wrongfully excludes another from making use of the property, the excluded co-owner can bring an action against the other co-owner.
• Right to Rent: Each owner has a right to the profits made from the property. If the property generates income such as rent, each owner is entitled to a pro-rata share of that income.
• Contribution: Each owner has a right of contribution for the costs of owning the property such as property taxes and mortgages on the entire property.
Co-owners do not have any obligation to contribute to any costs of repairing or improving the property so if one co-owner adds a feature that enhances the value of the property, that co-owner has no right to demand that any others share the cost of adding that feature - even if other co-owners reap greater profits from the property because of it.
However, when the property is being divided up, a co-owner is entitled to recover the value added by his or her improvements of the property. Conversely, if the co-owner's "improvements" decrease the value of the property, the co-owner is responsible for the decrease.