Tenants in Common and Death
Tenants in common are two or more parties who own property concurrently and share certain possessive rights to that property. In a typical tenancy in common, when one tenant dies, her share of the property becomes separate and may be left to other parties by will or inheritance. Those with questions about a specific tenancy in common should seek advice from a legal or real estate professional.
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Concurrent Estates
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Tenancy in common is one form of concurrent estate; the other two forms are joint tenancy and tenancy by the entirety. In a concurrent estate, two or more parties simultaneously hold ownership rights to the property, as well as the right to possess (use) the property. In a shared possession situation, each concurrent owner has the right to use the entire property, but no single concurrent owner may use the property in any way that keeps the other owners from using it as well. If he does so, he effectively "ousts" the other owners, and may owe them damages for excluding them.
Tenancy in Common
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In a tenancy in common, ownership of the property is divided. Unlike a joint tenancy, in which each owner owns an undivided interest in the entire property, each tenant in common "owns" his own fraction of the property. In a tenancy in common, these fractions need not be equal; Bob can hold half of the property, Sue can hold an eighth and Ann can hold three-eighths. However, tenants in common still have shared possession. Although each party may own a third of the property, the owner of one third cannot exclude the other two owners from her third. If one tenant in common wants absolute possession of her fraction of the property, she must typically convince the other tenants (or a court) to partition, or absolutely divide, the property. In many states, the law presumes a tenancy in common whenever someone grants property to multiple parties.
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Lack of Survivorship
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Some concurrent estates, such as joint tenancies, have a right of survivorship. This means that when one of the tenants dies, his ownership of the property is absorbed back into the tenancy; effectively, it disappears. If there are three joint tenants and one dies, the two surviving tenants are now the only owners of the property. Tenants in common do not have such a right of survivorship; when a tenant in common dies, his fractional interest in the property still exists without him.
Death of Tenant
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Since the death of a tenant in common does not destroy her ownership of her fraction of the tenancy, a tenant in common may typically deal with her property in death just as any other owner does. In terms of estate planning, the tenant in common can leave her property by will or deed it into a trust. If the tenant dies intestate (with no will or other disposition of her property), then her heirs can inherit her fraction of the tenancy property. However, the new owner will still hold as a tenant in common, sharing possession with the other owners, unless the tenants in common partition the property.
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