§3.2 - Tenancy in Common

• Jurisdiction: Washington

§3.2 TENANCY IN COMMON

A tenancy in common is normally created by a conveyance inter vivos, by testamentary gift, or by intestate succession of two or more persons to the estate of a decedent. There are other methods by which such a tenancy may be created, more or less involuntarily. For example, a conveyance by one of two joint tenants to a third party will sever the joint tenancy and convert the owners to tenants in common. Merrick v. Peterson, 25 Wn.App. 248, 606 P.2d 700 (1980). Severance may also be caused by conduct or agreements "inconsistent" with continued joint tenancy. Reilly v. Sageser, 2 Wn.App. 6, 467 P.2d 358 (1970). Similarly, a conveyance to "A and B as husband and wife," which apparently creates a tenancy in community property, creates a tenancy in common if A and B are not in fact married. A divorce ending the marriage of tenants in community property will make the parties tenants in common. Fritch v. Fritch, 53 Wn.2d 496, 335 P.2d 43 (1959). In many cases the court will allocate the property held as community property to one former spouse or the other, but if the property is not otherwise dealt with it is held by the former spouses as tenants in common.

(1) Definition

Tenancy in common is the most used form of concurrent ownership. Each cotenant has an undivided interest in the whole of the property, and the right to possess the property is limited by the same right in each other tenant. Each cotenant is presumed to have an equal share in the property, unless the agreement or deed creating the tenancy in common provides otherwise. Iredell v. Iredell, 49 Wn.2d 627, 305 P.2d 805 (1957); Mayo v. Jones, 8 Wn.App. 140, 505 P.2d 157 (1972). This presumption may be overcome by evidence of unequal contributions to the purchase price, and then it is presumed that the shares are proportional to the contribution. Cummings v. Anderson, 94 Wn.2d 135, 614 P.2d 1283 (1980); see also Shull v. Shepherd, 63 Wn.2d 503, 367 P.2d 767 (1963). Working out this "unity" of possession is one of the difficult areas of concurrent estates.

Land held in partnership may bear a certain superficial relationship to a tenancy in common, but when the situation is not covered by statutewhich it is in Washington under the Uniform Partnership Actcourts distinguish partnership from tenancy in common by giving what amounts to a separate existence to the partnership itself.

(2) Rights to possession, alienation, and transfer

Each tenant in common has a right to possess and enjoy the premises and may do so as if he or she is the sole owner. No tenant may bar another tenant in common from exercise of the same right or commit waste. United States v. Washington, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976); De la Pole v. Lindley, 131 Wash. 354, 230 P. 144 (1924). In general, the occupation or use of the property by one cotenant creates no liability to the others, absent "ouster" (addressed below). When the property is of a type that admits only a single use (for instance, a small house), it is possible that use by one tenant will be deemed exclusion of the other and liability for rent might be assessed. Cummings v. Anderson, 94 Wn.2d 135, 614 P.2d 1283 (1980).

The court in Yakavonis v. Tilton, 93 Wn.App. 304, 968 P.2d 908 (1998), apparently clarified the rules with respect to occupying cotenant liability for rent and nonoccupying cotenant liability for contribution for taxes and other expenses. The case involved a cotenant who was originally ruled to have no interest in real property occupied by the other cotenant. Ouster was determined to have occurred on the date of the order denying the ousted cotenant any ownership in the property. After an extended discussion of authorities, the court concluded:

• Prior to ouster, an occupying cotenant cannot be charged with the rental value of the property, either affirmatively or as an offset to an action for contribution.
• After ouster, the occupying cotenant is liable for rental as to the ousted cotenant's share of the property and the ousted cotenant may either recover the rental or use it as an offset to the occupying cotenant's action for contribution.
• The non occupying cotenant is liable to contribute a proportionate share for necessary expenses for the property.
• Ouster requires an assertion of possession and may occur when the mere occupation by one cotenant operates to exclude the other.

Ouster means something more than mere occupation. It denotes an intention to claim exclusive rights to the property, combined with conduct that clearly...