§3.3 - Joint Tenancy

• Jurisdiction: Washington

§3.3 JOINT TENANCY

Joint tenancy was the favored form of concurrent tenancy at common law. Any conveyance to two or more people (not husband and wife) was presumed to be a joint tenancy unless words indicating a tenancy in common were added. In the United States there was some general reaction against the joint tenancy; a number of states abolished it, while in others the presumption in favor of joint tenancy was reversed. 7 Richard R. Powell, Real Property §51.01[3] (1998).

Washington abolished joint tenancy (with right of survivorship) in 1885 while still a Territory. In 1952, the Washington Supreme Court allowed joint tenancy where it expressly appeared that a right of survivorship was meant to be created. Holohan v. Melville, 41 Wn.2d 380, 249 P.2d 777 (1952). A 1953 statute abolished right of survivorship by agreement or otherwise. Then in 1961 an Initiative Measure reintroduced joint tenancies to Washington. The governing statute, RCW 64.28.010, currently provides as follows:

Whereas joint tenancy with right of survivorship permits property to pass to the survivor without the cost or delay of probate proceedings, there shall be a form of co-ownership of property, real and personal, known as joint tenancy. A joint tenancy shall have the incidents of survivorship and severability as at common law, including the unilateral right of each tenant to sever the joint tenancy. Joint tenancy shall be created only by written instrument, which instrument shall expressly declare the interest created to be a joint tenancy. It may be created by a single agreement, transfer, deed, will, or other instrument of conveyance, or by agreement, transfer, deed or other instrument from a sole owner to himself and others, or from tenants in common or joint tenants to themselves or some of them, or to themselves or any of them and others, or from husband and wife, when holding title as community property, or otherwise, to themselves or to themselves and others, or to one of them and to another or others, or when granted or devised to executors or trustees as joint tenants: Provided, that such transfer shall not derogate from the rights of creditors.

In Lynch v. Frost, 45 Wn.App. 827, 727 P.2d 698 (1986), review denied, 107 Wn.2d 1034 (1987), the 1885 statute was applied to a 1947 deed.

Practice Tip: Be careful when dealing with conveyances prior to 1953, when some joint tenancies apparently were permissible, and between 1953 and 1961, when there was no right of survivorship.

In addition, there are special statutes dealing with certain types of property held in joint tenancy: RCW 11.04.230(U.S. savings bonds); RCW 23B.07.240 (corporate securities); Ch. 30.22 RCW (deposits in financial institutions); RCW 62A.7-202 (warehouse receipts); and RCW 68.32.070—090 (cemetery plots). These statutes should always be consulted when these types of property are involved. They effect some changes from common law joint tenancy.

Practice Tip: The best language to create a joint tenancy is "O to A and B as joint tenants, with right of survivorship, and not as tenants in common." This language specifically declares a joint tenancy, negates a tenancy in common, and refers to a right of survivorshipthe latter being the chief difference between joint tenancy and tenancy in common. Some courts or legislatures have expressed concern that nonlawyers do not understand that there is a right of survivorship with joint tenancy, so language indicating that survivorship is intended may be useful. It is not clear what language other than that recommended above will create a joint tenancy in Washington; language paralleling the statutory language will probably be sufficient.

According to the court in In re Estate of Magee, 55 Wn.App. 692, 780 P.2d 269 (1989), when a husband and wife attempt to change community property to joint tenancy property, compliance with the terms of RCW 64.28.010 must be clear. See...