The Rights of Tenants in Common Property Upon Death
- Tenants in common have separate, undivided interests that are alienable. When an interest is alienable it means that a co-tenant can sell his interest, leave his interest in a will or have his interest go to an heir by intestacy. A tenant can only convey his individual interest in the whole property. If a tenant sells his interest in the tenancy in common, the purchaser becomes a tenant in common with the remaining tenants.
- At common law, a joint tenancy was presumed; however, statutes in a majority of states provide that a tenancy in common is presumed unless expressly stated otherwise. Joint tenancies are more complex than tenancies in common; they require the unities of time, title, interest and possession. This means that each joint tenant's interest must start at the same time, must be equal with all other tenants, must last for the same period of time and must allow all tenants the right to possess the whole of the property. Tenancies in common do not have these requirements. Tenants in common can receive interests at different times in unequal shares.
- Absent an agreement to the contrary, tenants in common are presumed to have equal interests. For example, if there are two tenants, they are presumed to have a one-half interest in the whole. If there are three co-tenants, each is presumed to have a one-third interest in the whole. Since these fractional interests are undivided, each tenant has the right to use or possess the whole property.
- Upon the death of a tenant, his interest in the tenancy passes to his heirs. This is the opposite of a joint tenancy with right of survivorship where upon a tenant's death, his interest passes to the remaining tenants. The rights of tenants in common remain the same when a co-tenant dies. When a new tenant takes the deceased tenant's interest, he inherits the same obligations as the previous tenant. Original tenants do not lose any rights or interests simply because a new tenant receives an interest.
- When a co-tenant dies, the remaining tenants have the same rights as before. Tenants in common have a duty to one another to protect the common title. A tenant also has the right to seek reimbursement from his co-tenants for expenses in repairing and maintaining the property. Tenants in common may also seek to partition the property if they cannot agree on its management or operation.