Joint tenancy and tenancy in common | Lanbuk on the Law of Land

In simple terms

Two people can own the same land at the same time. This chapter stops at the threshold of the topic. The two forms that survived are the and the . They are not leases.

English law, and the law received in Sierra Leone, recognised more than one kind of co-ownership. The two that matter now are the joint tenancy and the tenancy in common. A tenancy in common is sometimes called undivided shares. The word "tenancy" is the old word for holding. It has nothing to do with a lease.

A joint tenancy is one title, held by more than one person. The four unities are the traditional test: possession, interest, title and time. Each joint tenant is entitled to the whole, and none has a separate share that can be pointed to while the joint tenancy lasts. The striking incident is . When one joint tenant dies, the title remains in the survivors. It does not pass under the will or on intestacy.

A tenancy in common is different. Each tenant in common has a distinct share, which can be equal or unequal, and which passes on death. What they share is possession. There is no survivorship.

Which one has been created is a question of the words and of the context. Words that show distinct shares, "in equal shares", "equally", a gift to business partners, point to a tenancy in common. A grant "to A and B jointly", without more, points to a joint tenancy. Equity has long preferred a tenancy in common where the right of survivorship would be unfair, particularly where the co-owners put up the purchase money in unequal shares.

A joint tenancy can be , and then it becomes a tenancy in common in the shares that result. A notice, a sale of one person's interest, or mutual agreement, are the usual methods. Severance is a subject of its own. This chapter only fixes the two ideas, so that "joint tenant" is not read as a tenant under a lease.

Read this chapter with the and with conveyancing. A conveyance to two purchasers has to say, or the law has to imply, which of these two holdings they take. Getting that word wrong decides who inherits.

Words and Latin in this note

Right of survivorship: The rule of a joint tenancy that, when one owner dies, the title remains in the others. It does not pass by will.
Tenancy in common: Co-ownership in which each person has a distinct share, which can pass on death. There is no right of survivorship. The word 'tenancy' here means holding, not a lease.
Joint tenancy: One title held by two or more people. None has a separate share while it lasts. On death the title stays with the survivors. It is not a lease.
Fee simple: The fullest form of land ownership: the owner holds the land for ever and can sell, give away or leave it by will. Open the note.
Severance: Turning a joint tenancy into a tenancy in common, for example by notice, by selling one person's interest, or by agreement. In this chapter it is not the criminal sense of the word.

Memory map

Joint tenancy and tenancy in common

Key points

A joint tenancy carries survivorship
The four unities mark a joint tenancy
Neither of these is a lease

Key terms

Fee simple
Joint tenancy
Tenancy in common
Right of survivorship

Take-home points

A joint tenancy carries survivorship. A tenancy in common carries distinct shares and no survivorship.
The four unities mark a joint tenancy. Words of severance, and unequal contributions, point to a tenancy in common.
Neither of these is a lease. The word 'tenancy' is the old word for holding land.

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