Article on Cotenancy

John V. Orth (William Rand Kenan, Jr.Professor of Law, University of North Carolina School of Law) recentlypublished an article entitled, Presumed Equal: Shares of Cotenants, 37ACTEC L.J. 463 (Winter 2011).  Provided below is the beginning of hisarticle:

For most of the long history of the common law, land was themost important asset and its ownership could be divided up in many ways. Aninterest in real property could be a present interest, such as a life estate ora fee simple; or it could be a future interest, such as a remainder or areversion. Land could be held in trust for the benefit of another. A right topossession for a term of years could be created by a lease. A right of usecould be created by an easement. Duties incident to ownership could be imposedby a real covenant or an equitable servitude. Land could be owned by one personin sole ownership, or it could be owned by two or more concurrently as tenantsin common or as joint tenants. Married persons could take title to land astenants by the entirety.

At common law the shares of cotenants depended on the type ofestate. In tenancies by the entirety the shares were equal because each spouseowned the whole, title being held not by two persons but by the marital unit.In joint tenancies the shares were equal by definition. For a joint tenancy toexist, the “four unities” of time, title, interest, and possession wererequired. If the shares of the cotenants were not equal, the unity of interestwould be lacking and the estate could not be a joint tenancy. The tenancy incommon required only the unity of possession, so the shares of cotenants couldbe unequal. But even here the shares were presumed equal in the absence ofevidence to the contrary.

Todaythe story is not so simple. Tenancies by the entirety that end with the divorceof the spouses – a possibility unknown to the common law – default intotenancies in common and are subject to equitable distribution. Joint tenanciesin many states are now exempted by statute from the required unity of interest.While retaining the right of survivorship, the new joint tenancies otherwiseresemble tenancies in common. In consequence, the presumption of equal sharesthat once applied only to tenancies in common now extends to joint tenancies aswell, focusing additional attention on the evidence necessary to rebut it. Aclear expression of intention to hold other than equal shares poses nodifficulty. A will or deed could grant an estate to multiple grantees anddescribe the respective shares of each. The problems arise when the intentionis implied rather than express.