Chapter 7 - § 7.1 • INTRODUCTORY

• Jurisdiction: Colorado

§ 7.1 • INTRODUCTORY

Under the feudal system of England, the holdings of the courts long favored joint tenancies as against tenancies in common. The later English decisions leaned the other way. In the United States, some of the courts early decided that a joint tenancy is alien to our form of government, and indulged in every possible presumption against that kind of tenure. Many of the states, however, did not leave the matter to the attitude of the courts. Statutes were enacted expressly favoring tenancies in common as contrasted with joint tenancies.¹ Among these is a statute adopted by Colorado at its first territorial legislature:

No estate in joint tenancy, in any lands, tenements or hereditaments, shall be held or claimed under any grant, devise or conveyance whatsoever hereafter made, other than to executors and trustees, unless the premises therein mentioned shall be thereby expressly declared to pass, not in tenancy in common, but in joint tenancy; and every such estate, other than to executors or trustees (unless otherwise expressly declared as aforesaid) shall be deemed to be tenancy in common.²

The present version of this statute provides:

Except as otherwise provided in subsection (3) of this section³ and in section 38-31-201,⁴ no conveyance or devise of real property to two or more natural persons⁵ shall create an estate in joint tenancy in real property unless, in the instrument conveying the real property or in the will devising the real property, it is declared that the real property is conveyed or devised in joint tenancy or to such natural persons as joint tenants. The abbreviation "JTWROS" and the phrase "as joint tenants with right of survivorship" or "in joint tenancy with right of survivorship" shall have the same meaning as the phrases "in joint tenancy" and "as joint tenants". Any grantor in any such instrument of conveyance may also be one of the grantees therein.⁶
. . . Any conveyance or devise of real property to two or more persons that does not create or is not presumed to create an estate in joint tenancy in the manner described in this section shall be a conveyance or devise in tenancy in common or to tenants in common.⁷

Thus, in Colorado, the ownership of real property in the form of joint tenancy is authorized and controlled by statute.⁸ Under the Colorado statute and its predecessors, there is a presumption against the creation of joint tenancies and in favor of tenancies in common.⁹ Indeed, it has been said that...