Most Common Law jurisdictions recognize three kinds of Concurrent Estate: Tenancy in common, Joint Tenancy with Right of Survivorship, and tenancy by the entirety. Many jurisdictions simply refer to a joint tenancy with right of survivorship as a joint tenancy, but a few U.S. States treat the phrase joint tenancy as synonymous with a tenancy in common.
Rights and duties shared by all cotenants.Co-tenants, irrespective of the type of tenancy, share certain rights to the property:
- Each tenant has an unrestricted right of access to the property. Where one co-tenant wrongfully excludes another from making use of the property, the excluded co-tenant can bring a cause of action for ouster, and may receive the fair rental value of the property for the time that he was dispossessed.
- Each tenant has a right to an accounting of profits made from the property. If the property generates income such as rent, each tenant is entitled to a proportion of that income.
- Each tenant has a right of contribution for the costs of owning the property. Co-tenants can be forced to contribute to the payment of expenses such as repairs, property taxes, and mortgages on the entire property.
Co-tenants have no obligation to contribute to any costs of improving the property. Furthermore, each co-tenant can independently encumber their own share in the property by taking out a mortgage on that share; other co-tenants have no obligation to help pay a mortgage that only runs to another tenant’s share of the property, and the mortgagee can only foreclose on that share.
Finally, co-tenants owe one another a duty of fair dealing. Because of this, any co-tenant who acquires a mortgage claim against the property must give his co-tenants a reasonable opportunity to purchase proportionate shares in that claim.
Destruction of a Tenancy in Common
Where the parties to a tenancy in common wish to destroy the joint interest, they can do so through a partition of the property – a division of the land into distinctly owned plots.
If the parties are unable to agree to a partition, any or all of them may seek the ruling of a court to determine how the land should be divided up, physically divide it between the joint owners, leaving each with ownership of a portion of the property representing their share.
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