The Top Five: Tenants in Common

There are a lot of angles the MBE can take when testing tenants in common. This post summarizes the areas I see them go most often in the questions:

The distinguishing factor between a tenancy in common and a joint tenancy is that a tenancy in common has no right of survivorship. Tenants can hold different interests in the property, (for example tenant 1 owns 75% while tenant 2 owns 25%), but all tenants have a right to possession of the entire 100%. Interests are entirely alienable, devisable, and inheritable. The following are five specific rules to know regarding co-tenancies:

(1): Though each tenant has the right to possess all of the property, no tenant has the right to exclusive possession of any part of the property. Therefore, if one co-tenant claims exclusive control (and only if one co-tenant claims exclusive control), then the other co-tenant can claim s/he has been ousted and bring a possessory action against the tenant claiming exclusive control.

(2): A co-tenant in possession has the right to retain profits from his/her own use of the property. However, net rents from third parties and net profits gained from exploitation of the land must be shared with co-tenants, even those who are not possessing the land at the time those rents or profits are generated.

(3): A co-tenant may encumber his/her interest (for example, by a mortgage), but may not encumber the interests of another co-tenant. The mortgagee can only foreclose on the mortgaging co-tenant's interest.

(4): Any co-tenant has a right to judicial partition either in kind (physical division of land among co-tenants), or by sale and division of the proceeds from the sale.

(5): A co-tenant who pays more than his/her pro-rata share of necessary repairs is entitled to contribution from the other co-tenants, provided the other tenants were notified as to the need for repairs. However, in contrast, there is no right of contribution from other co-tenants for the cost of improvements to the property that do not meet the standard of necessary repairs.