Chapter 7 - § 7.4 • TENANCY IN COMMON
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§ 7.4.1—Creation of Tenancy in Common
In General
A tenancy in common is a form of ownership in which each co-tenant owns a separate fractional share of undivided property.104 A tenancy in common is created when real property is owned by one person (such ownership being a "tenancy in severalty") and the owner conveys the property or an interest in the property so that after such conveyance the property is owned in undivided shares by two or more persons but is not owned by them as joint tenants. Thus, a conveyance by the sole owner of an undivided interest in property to one or more persons creates a tenancy in common between the owner and his or her grantee or grantees,105 and a conveyance by the owner of his or her entire interest in property to two or more other persons in such a manner as not to create a joint tenancy106 creates a tenancy in common between the grantees. (If, in fact, the unities of time and title have been abolished in Colorado by statute,107 it is not at all clear what the effect is of a deed purporting to convey the same title at the same time to two or more grantees.) The location of a mining claim by two or more persons creates a tenancy in common.108
By Termination of Joint Tenancy
A tenancy in common may also be created by the severing or termination of a joint tenancy. When a joint tenant severs the joint tenancy by conveying his or her interest, the person acquiring the interest becomes a tenant in common with the remaining joint tenants.109 The same result occurs when the interest of a joint tenant in real property is subject to execution and sale by a judgment creditor.110 A joint tenancy may be terminated by mutual agreement of the joint tenants,111 even though no conveyance provided for in the agreement is ever made.112 An agreement between joint tenants to hold property as tenants in common may be inferred from the manner in which the parties deal with the property.113
Property Acquired for Partnership Purposes
Two or more persons may agree to enter into a partnership to conduct a business on property owned or purchased by them as tenants in common. If the partnership is not formed or, if formed is dissolved, a question may arise as to the ownership of the property.
In Acker v. Johns,114 Johns agreed to purchase certain property, paying the full purchase price. Acker and Johns had an oral agreement whereby Acker was to pay Johns for a one-half interest in the property. Title was taken in the name of Acker and Johns, but the proposed partnership was never formed. The court held that record title to the property stood in the names of both Acker and Johns for partnership purposes, and that upon the mutual abandonment of the proposed partnership, Acker had no further interest in the property. The court treated the property as being contributed to the partnership by Johns, and said that "[w]hen the suggested partnership was mutually rescinded and abandoned, it was for both parties to return to status quo."
In Quelland v. Roy,115 Quelland and Roy, who were partners, leased certain real property. Thereafter, they dissolved the partnership and agreed that Roy would operate the business and make certain payments to Quelland. In an action for an accounting, Quelland counterclaimed, claiming full ownership of the leasehold. The court held that as Quelland was a tenant in common of the lease, he could be divested of his ownership only by operation of law or by assignment of his interest.
§ 7.4.2—Interests of Tenants in Common
Each tenant in common holds a several and distinct title, and is considered solely and severally seised of his or her separate share.116 A tenant in common has no title to a co-tenant's interest in the land,117 and cannot enjoin a foreclosure sale of a co-tenant's interest118 or challenge the validity of a sheriff's deed of a co-tenant's interest.119 The presumption is that the shares of tenants in common are equal.120 Other than stockholders in a mutual ditch company, for persons to be tenants in common in an irrigation water right, they must be owners as tenants in common of the lands upon which the water is used.121
§ 7.4.3—Mutual Rights and Obligations of Tenants in Common
In General
Tenants in common owe a duty to one another, and one may not take undue advantage of the other.122 But although tenants in common have a good-faith obligation in their dealings in regard to their common property, unless other facts show that one party reposed special confidence in the other, a fiduciary relationship does not exist between tenants in common.123 The fact that persons are tenants in common of certain property does not create any duties as between them as to other property.124
Transfer by One Tenant in Common
Although one tenant in common may not by his or her sole act convey the common property,125 a co-tenant may alienate his or her own interest in the common property through sale, gift, or encumbrance,126 in which case the grantee becomes a tenant in common with the other co-tenants.127 Such conveyances do not impose any additional burden on the common property.128
Rights of Possession
All co-tenants share a single right of possession of the entire property; each tenant may exclude third parties from the property.129 Unless an ouster is shown, the law presumes that the possession of one tenant in common is the possession of all.130 Therefore, until an actual ouster of the co-tenant has been established by conduct apart from mere use and occupation of the land, the statute giving rise to a claim of adverse possession does not begin to run.131 In actions where one tenant in common claims title by adverse possession against other tenants in common, exacting evidence in the proof of adverse possession is necessary. Every element of adverse possession must be clearly shown.132 In the absence of an intention to fence out a co-tenant, fencing does not support adverse possession.133
In the absence of a written agreement, tenants in common are not entitled to rent from each other unless the tenant seeking rent has been ousted from possession.134
One tenant in common cannot use an easement over the common property for purposes relating to property not held in common.135
The unity of possession necessary for tenancy in common of a water right does not exist where the water is divided between the owners and applied to their separate lands. Therefore, either party may change the place of use or point of diversion if such change does not damage or infringe the right of the other.136
Ouster
An ouster occurs when one tenant in common wrongfully dispossesses or excludes the co-tenants from the common property to which they are all entitled. An ouster can take place even if a tenant makes a claim of right under a mistaken belief of sole ownership; however, the other co-tenants must have actual notice of the adverse nature of the possession, or it must be so open and notorious in its exclusiveness and hostility as to put them on constructive notice. In addition, there is an ouster if a tenant takes exclusive possession of the property and receives rents, income, and profits and does not provide an accounting of them (thus demonstrating an intention to claim sole ownership); if the tenant pays property taxes for a long enough period that an ouster is presumed;137 if the tenant sells the property, thereby attempting to transfer the exclusive right to the property;138 or if the tenant takes exclusive possession under claim of right, where such exclusive possession is inconsistent with co-tenancy of the property.139 Moreover, an ouster occurs if the tenant files a claim for undivided ownership of the property.140
The issuance of a sheriff's deed purporting to convey the entire fee does not constitute an ouster of the co-tenant whose interest was not the subject of the execution upon which the sheriff's deed was issued.141
Contribution Among Tenants in Common—In General
Tenants in common are not required to pay each other for services they provide for the care and management of the common property, in the absence of a special agreement or mutual understanding to that effect,142 or except as provided by statute.143 However, a co-tenant is entitled to his or her share of income derived from the property.144
Contribution Among Tenants in Common — Tenants in Common of Mines
Tenancy in common of mines is governed by a statute first enacted in 1923, which provides:
If two or more persons own any mine they shall be considered tenants in common. Any one or more such tenants in common shall have the right to enter upon, occupy, prospect, develop, and work said mine in a minerlike manner, extracting, milling, and disposing of the ore from the common property without the consent of any nonworking tenant in common, subject to accounting to the nonworking tenant in common for his proportionate share of the net profits of such...
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