Chapter 7 - EXHIBIT 7A • UNITY OF INTERESTS OF JOINT TENANTS

• Jurisdiction: Colorado

EXHIBIT 7A • UNITY OF INTERESTS OF JOINT TENANTS

UNITY OF INTERESTS OF JOINT TENANTS

At common law, each joint tenant owned an undivided whole of the joint property,¹ as opposed to a fractional part of the property.² This rule had two consequences, which are really opposite sides of the same coin: (1) each joint tenant owned the entire property, and (2) the quantity of the interest of each joint tenant was identical to that of each other joint tenant.

Ownership of the Whole of the Property

Notwithstanding the fact that at common law each joint tenant owned an undivided whole of the property,³ in Commercial Factors of Denver v. Clarke & Waggener,⁴ the Colorado Court of Appeals said, "Each of two joint tenants owns an undivided one-half interest in the property as a whole," citing First National Bank of Southglenn v. Energy Fuels Corp.⁵ In Energy Fuels, the Colorado Supreme Court said, "Until the joint tenancy is severed, each joint tenant owns an undivided interest in the real property as a whole."⁶ There are vast differences between owning "the undivided whole," "an undivided interest in the real property as a whole," and "an undivided one-half interest in the property as a whole."

Identity of Quantity of Interests

The common-law rule regarding the quantity of the interests of joint tenants was clear and unambiguous:

• "[E]ach one of them must have exactly the same quantity of interest and estate as each of the others . . . ."⁷
• "Unity of interest meant that the joint tenants must have identical interests both as to the share of the common property and as to the period of duration of the interest of each."⁸
• "By unity of interest is meant that the joint tenants' shares are all equal and the duration and quality (legal or equitable) of their estates are the same."⁹

Thus, under the common-law rule, there was no room for any presumption regarding the interests of joint tenants. Nevertheless, in Nippel v. Hammond,¹⁰ the Colorado Supreme Court said: "It is a presumption of law, that the shares of several co-tenants, whether they be tenants in common or joint-tenants, are equal."¹¹

The court cited as authority 1 Washburn, Real Property *407. In a later edition, Washburn said, "And the shares of several joint-tenants, as well as of tenants in common, are always presumed to be equal."¹² The only case cited by Washburn for this proposition was Shiels v. Stark.¹³ In Shiels, an 1854 Georgia case, the court said, "I know that the shares of joint-tenants and tenants in common are presumed to be equal." No authority for the source of the court's "I know" was cited, and the parties in Shiels were clearly tenants in common, not joint tenants.

It would appear, therefore, where joint tenancy is concerned, that Nippel's reliance on Washburn and Washburn's reliance on Shiels were misplaced, and that therefore the authority for the statement in Nippel vanishes upon examination of the authorities cited.

In Duston v. Duston,¹⁴ father and son acquired property as tenants in common, each paying one-half of the purchase price. Then father and son conveyed the...