Chapter 7 - § 7.2 • JOINT TENANCY
| Jurisdiction | Colorado |
§ 7.2.1—Creation of Joint Tenancy
The term "joint tenant" has been defined for the purposes of beneficiary deeds as "a person who owns an interest in real property as a joint tenant with right of survivorship."12 A joint tenancy can be created only by purchase, or the act of the parties, and not by descent or act of the law.13 It appears that a joint tenancy may be created by an oral agreement supported by consideration, together with part performance in the form of joint possession and control, payment of taxes, and the making of substantial improvements.14 Under modern practice and statutory rules, in order to create a joint tenancy with survivorship rights, there must be specific language manifesting such intent, and where the instrument is silent or ambiguous as to the nature of the estate created, it will be construed as creating a tenancy in common and not a joint tenancy.15 It has been suggested that even the use of the word "jointly" is insufficient to create a joint tenancy.16 A grantor in an instrument of conveyance may also be one of the grantees.17 Thus, a grantor may make a gift of a joint interest in real property by conveying to himself or herself and another,18 and the gift is complete, perfect, and irrevocable.19 But after the owners have entered into a contract to sell land held as tenants in common, they cannot convert their interest in the contract to joint tenancy by conveyance of the naked legal title of the land to themselves as joint tenants.20
§ 7.2.2—Interests of Joint Tenants
At common law, the essential four unities of joint tenancy were time, title, interest, and possession.21 This meant that to create a joint tenancy, a conveyance must have been made to two or more persons at the same time, of the same title, to the same interest, with the same right of possession.22 Thus, at common law, each joint tenant owned an undivided whole of the joint property,23 rather than a fractional part of the property.24 There could not have been a joint tenancy in which the tenants held unequal interests. Nevertheless, the equivalent of such a tenancy could have been created using the recognized common-law techniques of life estates and contingent remainders.25
In Taylor v. Canterbury,26 the Colorado Supreme Court interpreted C.R.S. § 38-31-101(1) as abolishing the four unities. Moreover, it does not appear that the court interpreted the statute as merely abolishing the requirement for the four unities in the creation of a joint tenancy, but rather it seems that the court interpreted the statute as abolishing the unities themselves as characteristics of a joint tenancy, saying, without qualification: "The four unities have been abolished by statute."27
Corporations and Fraternal Societies as Joint Tenants
Generally speaking, a corporation cannot hold title as a joint tenant.28 An exception may exist for a corporation holding as a fiduciary.29 It appears that fraternal societies may hold "jointly,"30 although it is not clear whether "jointly" means "in joint tenancy."31
§ 7.2.3—Mutual Rights and Obligations of Joint Tenants
In a joint tenancy, the rights are fixed and vested in the joint tenants at the time of the creation of the joint tenancy.32 At common law, one joint tenant could occupy the whole property, but because of the unity of possession, he or she could not exclude other joint tenants from their right to use and enjoy the property.33 (If, in fact, the unity of possession has been abolished in Colorado by statute,34 it is not at all clear what the rights of possession of the joint tenants may be.) A joint tenant in possession is liable to the other joint tenants for any depleting use he or she may make of the land.35 A joint tenant cannot alienate, encumber, or transfer the interest of the other joint tenants without their consent,36 but a joint tenant can convey or encumber the interest that he or she owns.37 An agreement to hold property in joint tenancy does not preclude one joint tenant from conveying his or her interest in the property.38
§ 7.2.4—Survivorship Aspects39
In General
At common law, upon the death of one of two joint tenants, the surviving tenant became, by operation of law, the sole owner of the property40 free from any liens which may have existed on the extinguished interest of the deceased.41 This right of survivorship was a result of the unity of interest of joint tenants, each joint tenant owning an undivided whole of the property, so that the surviving joint tenant does not take any new or additional interest by virtue of the death of his or her joint tenant, but rather, under the original conveyance by which the joint tenancy was created, his or her interest in the property is merely freed from the participation of the other.42 (Nothing "passes" to the surviving joint tenant,43 nor does the surviving joint tenant "inherit" the property.44 ) This is the feature that is said to be the major distinguishing characteristic of a joint tenancy, as opposed to a tenancy in common.45 If, in fact, the unity of interest was abolished in Colorado by statute,46 it is difficult to justify the continued existence of a right of survivorship on the basis of the common-law theory of joint tenancy, and it is not readily apparent upon what other theory the right of survivorship could have been based.
Testamentary Disposition by One Joint Tenant
Under the common-law doctrine of survivorship, the right of the survivor is preferred over any devise or testamentary conveyances that the decedent could make, and any attempt to devise property affected by the survivorship was inconsistent with such status.47
C.R.S. § 15-15-102 provides:
No will or other testamentary disposition or testamentary provision of one of the owners in joint tenancy of real or personal property or of an interest in real or personal property shall destroy or affect the joint tenancy or prevent the entire title and interest owned by the joint tenants from becoming vested upon his death in the joint tenants who shall have survived him. Upon the death of an owner in joint tenancy of real or personal property or of an interest in real or personal property, leaving surviving him co-owners under such joint tenancy, all of the interest and title which, immediately before such death was owned by all of the joint tenants under such joint tenancy, shall become vested in the survivors of such joint tenants in spite of and without regard to the provisions of a will of the joint tenant so dying or the admission to probate of such will and without regard to whether such will was executed before or after the creation of the joint tenancy.
This section is misleading in stating that the interests of the survivors "shall become vested" upon the death of the deceased joint tenant. To the contrary, the interests of all of the joint tenants vest upon the creation of the joint tenancy, and the death of the deceased joint tenant merely frees the interests of the survivors from the interest of the deceased joint tenant.48
The statute regarding Designated Beneficiary Agreements may be an exception to the rule that a joint tenancy interest is not devisable in that it provides that a Designated Beneficiary Agreement may provide that the parties may "hold title to, own jointly, or transfer inter vivos or at death real . . . property as joint tenants with right of survivorship . . . "49
Nevertheless, when the nature of the tenancy was in doubt, the fact that one tenant made a disposition by will that was inconsistent with a joint tenancy was evidence that the tenancy was not joint.50
The Colorado Uniform Disclaimer of Property Interests Act, effective August 10, 2011, provides, in C.R.S. § 15-11-1207(1):
Upon the death of a holder of jointly held property,51 a surviving holder may disclaim, in whole or in part, the incremental portion of the jointly held property devolving to the surviving holder by right of survivorship.
At common law, a surviving joint tenant already owns the whole of the property by virtue of his or her unity of interest. Nothing "devolves" to him or her. Therefore, it would seem that the phrase "the incremental portion of the jointly held property devolving to the survivor by right of survivorship" apparently refers to the fact that at common law, in the absence of disclaimer, the survivor's interest in the whole of the property would be freed from the participation of the deceased joint tenant. Thus, the surviving joint tenant, who already owns the whole of the property by virtue of his or her unity of interest, does not take any new or additional interest by virtue of the disclaimer.52 But the 2008 Colorado Joint Tenancy Act provides for unequal interests, and this author has taken the position that the Act
in providing for unequal interests does not create a concomitant statutory right of "survivorship" whereby the interest of a deceased joint tenant "passes", in some fashion, to the other joint tenants or tenants. Merely providing that the interest of the surviving tenant "shall continue free of the deceased joint tenant's interest" does not in any manner transfer the interest of the deceased joint tenant or create a right of survivorship.53
This is because the right of survivorship is, at common law, a consequence of the fact that, by virtue of his or her unity of interest, each joint tenant owns the whole of the property, and upon the death of a joint tenant, the interest of a surviving joint tenant in the whole of the property is freed from the participation of the deceased joint tenant. But under current Colorado law, an unequal joint tenant does not have an interest in the whole of the property, but has only an unequal interest in the property. ("It is, of course, impossible to reconcile the concept that each joint tenant owns the whole of the property with the concept that their interests may be 'unequal.'"54 ). Therefore, the provision that interest of a surviving joint tenant...
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