2 types of concurrent ownership are common (2024)

By DR. GEORGE R. KARVEL

St. Cloud State University

Concurrent ownership of property simply means that title to the same piece of property is in two or more names at the same time. This type of ownership is distinguishable from an estate in severalty, which is an estate that is held by one in one's own right only, without any other person being joined or connected.

The most prevalent type of concurrent ownership is called a joint tenacy. A joint tenancy exists when two or more people own the same land and have the same unity of interest, time, title and possession together with the right of survivorship. This latter factor has often been called the ``grand incident'' of the joint tenancy.

The two or more parties concerned with the joint tenancy are considered as having but one estate in the land. Each is considered to be the owner of the whole. In order for there to be a joint tenacy, the four unities (interest, time, title and possession) must exist.

1. Unity of interest means that the interest of the owners must be of the same duration. For example, if the conveyance were made by the same instrument, to A in fee and to B for life, there could exist no joint tenancy because one of the four unities would be lacking.

2. Unity of time has been construed to mean that the title to the property must vest in the tenants at the same time. One tenant cannot hold the property in possession while another holds it in remainder.

3. Unity of title means that both or all of the tenants must have one and the same interest arising out of one and the same convenyance.

4. Unity of possession means that each of the tenants must have undivided or equal rights of possession.

The so-called ``grand incident'' of the joint tenancy is the right of survivorship. This means that when a joint tenancy exits, title passes to the survivor upon the death of one of the parties. For example, if A and B hold property as joint tenants and A dies, the title in fee to the entire property passes to B. It is for this reason that many of the states have passed specific statutes requiring that the joint tenancy be spelled out in a deed.

To create the joint tenancy the deed should read ``to A and B as joint tenants,'' or, to be on the safe side, ``to A and B as joint tenants and not as tenants in common.''

The joint tenancy, and, of course, the right of survivorship, will be destroyed by a conveyance by one of the tenants to a stranger. For example, if A and B are joint tenants and B conveys to C, then A and C hold as tenants in common, without right of survivorship. If there are four joint tenants, A, B, C and D, and D conveys to X, then A, B, and C hold as joint tenants as to each other and as tenants in common with X. If A were to die, B and C would get A's share by survivorship and remain tenants in common with X.

Sometimes the question arises, ``What happens regarding simultaneous deaths of the joint tenants?'' The Uniform Simultaneous Death Act, adopted in all states except Lousiana and Georgia, provides in effect that the property passes to the heirs of each joint tenant. For example, if there are two joint tenants, half goes to the heirs of each. If there are four joint tenants, a quarter goes to the heirs of each, and so on. Another type of title ownership is tenancy in common. It exists when two or more people own the same land with undivided interest. Their interest may exist under different titles, or under the same title if it contains words of limitation importing that the grantees are to own undivided shares. There is no right of survivorship in the tenancy in common, distinguishing it from the joint tenancy. Also, the tenants do not have to own equal shares. For example, A's interest may be in one-third of the property and B's in two-thirds. An ancient concept of co-ownership given a modern dress by virtue of the Housing Act of 1961 is the condominium. A condominium is a form of ownership of real property characterized by the fee ownership of individual units, commonly apartments, coupled with an undivided interest in common with the remainder of the property. Basically the idea is for an individual to own the apartment in which he or she lives. It is paid for either in cash or by means of a mortgagge plus a proportionate annual sum for maintenance and management of the building.

Prior to the Housing Act of 1961, which permitted FHA insurance on condominiums for the first time, there were a number of cooperative apartments -- a concept which must be distinguished from the idea of condominium. The cooperative apartments are corporations which sell shares of stock to the ``tenants.'' In a cooperative setup, if the corporation fails to pay taxes, the owner could lose the apartment. In addition, the owner could become liable for the tenant's failure to make payments to the co-op. The owner of the condominium can pay off the mortgage, and cannot be foreclosed upon even if the other owners have not paid. Furthermore, the owner of the condominium can sell without permission of the other owners; but in the case of the cooperative apartments, each owner must have permission of the other owners. The idea of the condominium is spreading from apartment buildings to shopping centers and business offices in downtown areas.

In order for the condominium to exist, the individual states had to pass legislation permitting city assessors to assess each apartment on an individual basis. This is a prerequisite to the FHA insurance and has now been done in all of the states. The first condominium was completed in Hallandale, Fla., in April 1962.