⚡ 10-Second Rule
Co-owners either have a "last one standing takes all" pact or plain separate shares, and one owner's actions can break the pact.
🧒 ELI-10 Scene
Sisters Ines and Marta build a clubhouse together and make a pact. Same day, same project, equal shares, both can use every corner. The pact says: when one sister is gone, the other keeps the whole clubhouse. Their cousins Leo and Sol also share a clubhouse, but with no pact. Each cousin just owns a slice, and each can leave that slice to anyone. Now the twist: Ines secretly trades her half to her friend Dara. The pact needed the original matched set, so the trade shatters it. Dara and Marta now just own plain slices, cousin-style. Secret moves can break the pact — even if nobody announces them.
⚖️ Actual Rule
Common-law concurrent-estates doctrine, majority rules:
- Joint tenancy requires the four unities — time, title, interest, and possession — plus, under the modern presumption favoring tenancy in common, express survivorship language. On one joint tenant's death, the decedent's interest is extinguished and the survivors hold the whole; a joint tenant's will cannot defeat survivorship.
- Severance converts the severed share into a tenancy in common. An inter vivos conveyance by one joint tenant severs as to that share, even if unilateral and secret, Riddle v. Harmon, 102 Cal. App. 3d 524 (1980); with three or more joint tenants, the remaining joint tenants stay joint as among themselves. A mortgage by one joint tenant severs in a title-theory state (the mortgage transfers title) but not in a lien-theory state (the majority rule), where the mortgage is a mere lien that dies with the mortgagor's interest, Harms v. Sprague, 105 Ill. 2d 215, 473 N.E.2d 930 (1984). Courts split on whether a lease by one joint tenant severs; the view of Tenhet v. Boswell, 18 Cal. 3d 150 (1976), is that it does not, and the lease expires when the leasing joint tenant dies.
- Tenancy in common is the default co-tenancy: only the unity of possession is required, shares may be unequal, and each interest is freely alienable, devisable, and descendible.
- Tenancy by the entirety, recognized in roughly half the states, exists only between married spouses, carries indestructible survivorship, and — under the majority rule — neither spouse acting alone can convey or encumber the estate, so creditors of one spouse alone cannot reach it. Divorce converts it to a tenancy in common. [NJ-VARIANT: flagged for future Eli Explains NJ Law module]
- Co-tenant rights: each co-tenant may possess the whole; a co-tenant in sole possession owes no rent to the others absent ouster (exclusion of a co-tenant seeking to enter). Rents collected from third parties must be shared. A paying co-tenant may compel contribution for taxes and mortgage payments, but not for repairs or improvements — though those are credited in a final accounting or partition. Any co-tenant may demand partition: in kind is preferred; sale is ordered where physical division is impracticable or unfair.
ELI-10 translation: the survivorship pact needs a perfectly matched set, and one owner trading away a share breaks it. In most states, merely borrowing against a share does not.
🔍 Ask These Questions
- Did the deed use express survivorship language at creation? (No pact words means plain slices — tenancy in common.)
- Are the four unities intact — same time, same document, equal shares, whole possession? (A mismatched set can never form the pact.)
- Did any joint tenant convey an interest during life? (A trade, even a secret one, breaks the pact for that slice.)
- Did a joint tenant mortgage or lease instead of conveying? (In most states, borrowing against your slice does not break the pact.)
- Are the co-owners married in an entirety state? (Then neither spouse alone can sell it or lose it to their own debts.)
- Is a co-tenant claiming rent, contribution, or partition? (Living there alone is free unless someone was locked out; taxes get shared; anyone can force a split.)
⚠️ Bar Trap
Exam language: A joint tenant unilaterally mortgages her interest and then dies, and the examiners bait you into holding that the surviving joint tenant takes subject to the mortgage. In a lien-theory jurisdiction — the majority — the mortgage does not sever the joint tenancy, and because the mortgagor's interest is extinguished at death, the lien attached to it is extinguished as well: the survivor takes the whole free of the mortgage. Only in a title-theory jurisdiction does the mortgage sever, leaving the lender's rights attached to a tenancy-in-common share.
ELI-10: In most states, borrowing against your share does not break the pact. When the borrower dies, her share vanishes, and the bank's grip vanishes with it. The survivor takes everything, debt-free.
🧪 Question
Priya and Quentin owned a lakeside cabin as joint tenants with right of survivorship in a jurisdiction that follows the lien theory of mortgages and has no statute altering common-law severance rules. Without Priya's knowledge, Quentin borrowed $80,000 from Lakeshore Bank and executed a mortgage on his interest in the cabin as security. Quentin died the following year, leaving a will devising all his property to his son Rafael. The loan remains unpaid.
Who owns the cabin, and with what encumbrance?
(A) Priya owns the entire cabin, subject to the bank's mortgage on an undivided one-half interest. (B) Priya owns the entire cabin, free of the mortgage. (C) Priya and Rafael own the cabin as tenants in common, with Rafael's share subject to the mortgage. (D) Priya and Rafael own the cabin as tenants in common, free of the mortgage.
Answer: (B). In a lien-theory state, one joint tenant's mortgage creates a lien but does not sever the joint tenancy. At Quentin's death his interest was extinguished by survivorship — so his will passed nothing — and the lien, attached only to that extinguished interest, was extinguished with it.
💡 Why the Wrong Answers Are Wrong
- (A) correctly applies survivorship but forgets that the lien cannot outlive the interest it encumbered.
- (C) states the title-theory result, treating the mortgage as a severing transfer of title; the facts specify lien theory.
- (D) assumes Quentin's will could pass his interest, but survivorship operates at death before any will can speak.
- ELI-10: The misconception is thinking a dead co-owner's share and debts stick around. Under the pact, the share evaporates, and the debt riding on it evaporates too.
