This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
When the same piece of land is held by several tenants at once, they are either joint tenants, or tenants in common.
The chief difference is this, that when one joint tenant dies the whole land goes to the survivors; and on the death of the last survivor, the whole land goes to the heirs (or under the will) of the last survivor. This is called survivorship.
When one tenant in common dies, his estate does not survive to the others, but goes to his heir or under his will.
In either case, each of the tenants has, during his life, an equal right with the others to the whole of the land.
E.g. two barristers share a room in Lincoln's Inn, each has as much right as the other to use any part of the room.
Each is said to hold an undivided share. If, however, each tenant agrees to take a specific part of the whole as exclusively his property, they are no longer joint tenants or tenants in common. The estate has been partitioned.
E.g. a widow on the death of her husband has a right to dower, i.e. to have one third part of the land marked out "by metes and bounds" for her separate enjoyment during her life. The widow is not a tenant in common or joint tenant with the heir.
The test to determine whether persons are joint tenants or tenants in common is as follows: -
Persons cannot be joint tenants unless their estate complies with all four of the following requirements, which are usually called the four unities of joint tenancy.
(1) Possession. - Each tenant must be entitled to possession of the whole land equally with the others.
(2) Interest. - Each must have the same estate or interest in the land.
(3) Title. - Each must take under the same title, i.e. the estate of each must be created by the same instrument.
(4) Time. - Each must hold from the same time and for the same time.
An exception to this rule may occur where land is granted by means of a use.
E.g. A grants lands -
To X in fee simple,
To the use of himself (A) and any wife he may marry for their joint lives, etc.
A has a life estate at once - but on his marriage his wife will have a joint estate with him, though her estate will -begin after his (a).
If any one of these tests or unities is not complied with, the estate is a tenancy in common.
A conveyance of land by deed to several
(a) See Goodeve, "Real Property," pp. 230, 231.
Joint Tenants and Tenants in Common 53 persons creates a joint tenancy unless anything appears to the contrary; for they hold the same estate, by the same deed, for the same time.
But if they have paid unequal shares of the purchase money or any other inequality is shown, they are considered as tenants in common in equity.
Equity will always construe the gift as a tenancy in common if there is any sufficient ground for doing so. Thus in a will slight indications are enough to show a tenancy in common. And partners are always deemed to be tenants in common in equity for certain purposes.
Persons may be joint tenants in fee simple or for any smaller estate, e.g. for life, or in tail.
Joint tenancy in tail.
If land is granted to A and B and the heirs of their bodies, then -
(1) If A and B could possibly intermarry, the land will go to them for their lives, and after the death of both, to their children if they have intermarried.
(2) If A and B could not intermarry, then on the death of the survivor the land will go, half to the heirs of the body of A, and half to the heirs of the body of B.