Chapter 7 - § 7.3 • THE 2008 JOINT TENANCY ACT

• Jurisdiction: Colorado

§ 7.3 • THE 2008 JOINT TENANCY ACT

§ 7.3.1—In General

On April 25, 2008 the Governor signed House Bill 08-1248, "Concerning Joint Tenancy in Real Property." This Act provides:

Section 1. 38-31-101, Colorado Revised Statutes, is amended BY THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS to read:

38-31-101. Joint tenancy expressed in instrument - when. (1.5)(a) The doctrine of the four unities of time, title, interest, and possession is continued as part of the law of this state subject to subsections (1), (3), (4), (5), (6), and (7) of this section and paragraph (b) of this subsection (1.5). (b) Subsections (1), (3), (4), (5), (6), and (7) of this section are intended and shall be construed to clarify, supplement, and, limited to their express terms, modify the doctrine of the four unities.
(c) For purposes of this subsection (1.5), the "doctrine of the four unities of time, title, interest, and possession" means the common law doctrine that a joint tenancy is created by conveyance or devise of real property to two or more persons at the same time of the same title to the same interest with the same right of possession and includes the right of survivorship. (5)(a) Except as provided in sections 38-35-118 and 38-41-202(4), a joint tenant may sever the joint tenancy between himself or herself and all remaining joint tenants by unilaterally executing and recording an instrument conveying his or her interest in real property to himself or herself as a tenant in common. The joint tenancy shall be severed upon recording such instrument. If there are two or more remaining joint tenants, they shall continue to be joint tenants as among themselves.
(b) Filing a petition in bankruptcy by a joint tenant shall not sever a joint tenancy.
(6)(a) The interests in a joint tenancy may be equal or unequal. The interests in a joint tenancy are presumed to be equal and such presumption is:
(I) Conclusive as to all persons who obtain an interest in property held in joint tenancy when such persons are without notice of unequal interests and have relied upon an instrument recorded pursuant to section 38-35-109; and
(II) Rebuttable for all other persons.
(b) This subsection (6) does not bar claims for equitable relief as among joint tenants, including but not limited to partition and accounting.
(c) Upon the death of a joint tenant, the deceased joint tenant's interest is terminated. In the case of one surviving joint tenant, his or her interest in the property shall continue free of the deceased joint tenant's interest. In the case of two or more surviving joint tenants, their interests shall continue in proportion to their respective interests at the time the joint tenancy was created.
(d) For purposes of the "Colorado Medical Assistance Act", articles 4, 5, and 6 of title 25.5, C.R.S., a joint tenancy shall be deemed to be a joint tenancy with equal interests among the joint tenants regardless of the language of the deed or other instrument creating the joint tenancy.
(7) Nothing in this section shall be deemed to abrogate any existing case law to the extent that such case law establishes other means of severing a joint tenancy.
Section 2. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.

This Act was, in effect, the product of a committee consisting of real property lawyers, trusts and estates and elder law lawyers, and Medicaid lawyers.⁹¹

§ 7.3.2—The Four Unities

In Taylor v. Canterbury,⁹² the Colorado Supreme Court stated, in dictum: "The four unities have been abolished by statute."⁹³ By providing that the doctrine of the four unities "is continued" rather than "reinstated," the General Assembly has in effect refuted the above-quoted dictum and assuaged the fears of real property lawyers that this dictum, if correct, would have resulted in the unsettling of virtually all Colorado real property titles founded in joint tenancy. Indeed, C.R.S. § 38-31-101 recognizes that "a joint tenancy is created by conveyance or devise of real property to two or more persons at the...