Hello Lone Joe,
Of course the Google Answers disclaimer of our not providing legal
advice applies. Particularly in real estate matters, getting the
advice of a local attorney specializing in property law is ALWAYS a
great idea; there may be some small, tiny point that can make a HUGE
difference in how a matter may be decided.
You asked whether one tenant-in-common can sell their (undivided)
share in real estate to another, without the consent or knowledge of
the other co-tenant. The answer is YES.
According to Michigan Real Property Law by John G. Cameron, Jr. (3rd
edition 2005): "The interest of a tenant in common in real estate may
be conveyed out, mortgaged, or otherwise transferred or encumbered by
its holder. Since it is a separate title, the interest of a tenant in
common held by a marrked man is subject to his wife's right of dower."
(Section 9.4.) Of this question, there should be little doubt.
A tenant in common may sell all or part of the tenant's undivided
interest in the common property. Pellow v. Arctic Mining Co, 164 Mich
87 (Michigan Supreme Court, 1910). A conveyance of the whole by one
tenant in common does not pass the entire property. Campau v. Campau,
44 Mich 31 (1880). It may, however, result in the conveyance of the
interest of the grantor [you] in the common property. See Cooper v.
Pierson, 212 Mich 657 (1920).
There are lots of Michigan cases where a cotenant has sold timber or
minerals, or where the buyer occupied the whole property. In Benedict
v. Torrent, 83 Mich 181 (1890) the Michigan Supreme Court considered a
case in which one tenant in common conveyed his interest in the timber
on the commonly owned property. The court held that the only interest
taken by the grantee [buyer] was the interest in the timber on the
lands that in partition proceedings would be set off to his grantor
[seller]. The court also said that it is well settled that if one
tenant in common conveys to a stranger anything but an undivided
interest in the whole of the land and the interest is prejudicial to
the rights of his uninformed cotenants, the conveyance is void.
However, one tenant in common may not lease the 'entire' common
property, and an attempted lease is void as to his or her cotenants.
Lee v. Livingston, 143 Mich 203; 106 NW 713 (1906). This is also true
where a third-party is granted a license. Walker v. Marion, 143 Mich
27 (1906).
As you can see, there are cautions when anything happens more than
just conveying (selling) your undivided share. And, if you purchased
the interest in the property with the other person as part of a
business venture, that might, possibly, implicate some fiduciary duty
to give notice.
And, if the other owner is a spouse, of course you may not have a
tenancy in common after all (even if it was initially acquired as
tenants in common) and caution should be exercised.
And too, as stated above by Prof. Cameron, if you are a male who is
married, your female spouse probably has a dower interest in the
property requiring her to join in, with you, on the conveying deed.
Notwithstanding all of the above, a good rule to avoid lawsuits is
"disclose, disclose, disclose." Even a half-baked lawsuit, in which
you would prevail, is going to tie you up for a year and cost you
$5K+. Discretion being the better part of valor, you may want to
disclose to your cotenant.
But, do you have to? Michigan law is clear: NO!
I hope this exceeds your expectation as to the services we provide. If
you have any questions, please ask for clarification and I will be
more than happy to amplify my answer.
Best regards,
weisstho-ga
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