From the information presented, there should be little question that
each trust would be a "Tenant in Common."
Black's Law Dictionary (8th ed at 1507) defines a "tenant in common"
as "one of two or more tenants who hold the same land by unity of
possession by by separate and distinct titles, with each person having
an equal right to possess the whole property but no right of
Likewise, (Black's at 1506) a "tenancy in common" is defined as a
"tenancy by two or more persons, in equal or unequal undivided shares,
each person having an equal right to possess the whole property but no
right of survivorship."
Black's goes on to quote Bergin & Haskell's Preface to Estates in Land
and Future Interests: "The central characteristic of a tenancy in
common is simply that each tenant is deemed to own by himself, with
most of the attributes of independent ownership, a physically
undivided part of the entire parcel."
Without question, a "trust" is simply another "person" for purposes of
the above definitions.
A "joint tenancy" or a "joint tenancy with rights of survivorship" or
a "joint tenancy with full rights of survivorship" would, under almost
all state laws, have to be unequivocally and clearly stated in the
language of the deed, in order to exist. Most joint tenancies assume
that the estate vests in the remaining living holders upon the death
of another. Example: A and B and C own Blackacre. B dies. Blackacre
is owned by A and C, as joint tenants. A dies. C owns Blackacre. Joint
tenancies can be very tricky. In Michigan, where I practice law, most
of our more interesting land title cases come from people using a
"joint tenant with full rights of survivorship" too loosely and, after
the estate is created, they find that it can't be changed without the
complete consent of all of the owners. Because of this trickiness, the
joint tenancy must be very clearly created so that the intent of the
parties in creating the joint tenancy is absolutely clear. If your
deed does not use these 'magic words' you can probably safely assume
that you aren't a "joint tenant."
A tenancy by the entireties is only created when a married couple
acquires land. When a married couple, holding an estate as tenants by
the entireties, divorce, there interests convert to a tenancy in
You see, a "tenancy in common" is kind of a default position. At least
in Michigan, our law ASSUMES a tenancy in common and where there is an
ambiguity, our courts will assume that condition.
The Tenancy in Common ("TIC") is simple - everyone has the same
interest and the same rights, duties and obligations. Absent an
agreement to the contrary, everyone is liable to one another for their
share of property taxes and costs, everyone is entitled to possess the
property and use the property. Where disputes exist one tenant can
bring an action for "partition" and either force a co-tenant out or
have the property sold. A court of general jurisdiction located in the
county in which the property is located would be where a partition
action is brought.
The fact that the conveyance was by "warranty deed" rather than by
quit claim deed is probably of no moment. You didn't ask that
question, but many people become overly-concerned about the
I hope that I answered what appears to be a very simple question. If
not, or if something else comes to mind, please ask for a
clarification before rating the answer.
AND, although I practice law in Michigan, the law of property is
awfully unique in every single state - therefore, this information
should be used as a general rule and not specific to your state. As
always, the advice of a good attorney in the county in which the
property is located is a wonderful resource. Need to find a good
property attorney? Call the local Title Insurance company - they know
who the best ones are.
Good Luck, and thanks for visiting.
tenant in common
tenancy in common
partition and "property law"
Clarification of Answer by
30 Nov 2005 19:24 PST
Thanks for asking. Glad to try to help.
First, as a matter of semantics, "partition" is a legal remedy granted
by a court in an action brought by a co-tenant, against the other
co-tenant(s), where the property is sold or the co-tenants' interests
divided equitably. The object of partition is to enable tenants in
common to end their cotenancy and obtain possession of separate sole
estates in specific property, free of any hindrance from the other
If I understand your wish - you want to enter into a lease for a
period of years that would permit a non-owner to farm or otherwise
possess the land. Can you do this? To give your lessee the right to
enter the land, and not be ousted (evicted) by the other co-tenants,
those other co-tenants must consent to the lease of the property to
BUT, supposing that you had entered into a lease with another, without
the written consent of your co-tenants, and the co-tenants failed to
object to the lease, that could, emphasize could, create a property
right in the lessee - but this is a very, very messy area of the law
with a great many variables and technicalities.
You indicated that you would like to lease out your interest . . .
collect the rents and share them with your co-tenants. Most property
attorneys would give you a very definite answer: "it depends."
Say you had 160 acres, all tillable, and owned by 4 co-tenants,
including you. Could you lease out 40 acres? Probably. Could you
lease out more than 40 acres without consent of the other 3? Probably
Further, would the entering into a lease stall or make more difficult
a partition action? No. To the contrary, it would make it a piece of
cake. The other co-tenants, objecting to the lease, would do two
things immediately: (1) bring an action of ouster against the lessee
(probably as a simple eviction), and (2) get an injunction against
your doing anything else to the land.
BUT, if I misunderstand your question, and all co-tenants consent to
the lease, impliedly or explicitly, then you are correct in that a
potential partition action would have to await the co-tenants
regaining their right to possess the property. In this case, the
lessee has the possessory right to the property, not the co-tenants.
This is the case so long as the rent is paid and any other conditions
related to the lease are met.
Since I am not totally certain that I understand your question in this
first clarification, and if I haven't answered your question - try it
again and ask for another clarification.