1. Recent Developments in Joint Tenancy
April 2, 2009
Diane B. Davies

2. What is a Joint Tenancy
Form of ownership in which each joint tenant possesses the entire estate, rather than a fractional share

3. Four Unities
Interest
Title
Time
Possession

4. Four Unities Blackstone
One and the same interest
Accruing by one and the same conveyance
Commencing at one and the same time
Held by one and the same possession

5. Common Law
At early common law, a conveyance to two or more persons (other than a husband and wife) presumed to create a joint tenancy.
Evolved to a presumption of tenancy in common

6. Colorado Statutes C.R.S. § 38‑31‑101
Predecessor statute adopted by the Territorial Legislature in 1861

7. Required Language In Joint Tenancy As Joint Tenants JTWROS
As Joint Tenants with Right of Survivorship
In Joint Tenancy with Right of Survivorship

8. Deed to Self
“Any grantor in any such instrument of conveyance may also be one of the grantees therein.”

9. The Four Unities
Interest
Title
Time
Possession

10. Survivorship
The survivor does not take any new or additional interest on the death of his joint tenant - takes under original conveyance or devise
The death of a joint tenant does not result in a transfer of that tenant's interest to the survivor, but merely terminates any interest of the decedent
Any liens existing against the deceased joint tenant's interest are extinguished
Result of the unity of interest

11. Severance of a Joint Tenancy
Conveyance of the interest of one joint tenant
Mortgage of one joint tenant’s interest in a title theory state – not Colorado
Execution sale on one joint tenant’s interest – but not attachment of judgment lien
Contract or agreement
Destruction of one of the four unities
Modern View – Intent to terminate right of survivorship

12. Severance of Joint Tenancy
Felonious killing of a joint tenant
Dissolution of marriage, except as provided in an agreement or court order
Unilaterally executing and recording an instrument conveying his interest to himself as tenant in common?

13. Taylor v. Canterbury
Taylor conveyed ranch to himself and Canterbury as joint tenants
Taylor subsequently executed a quitclaim deed from purporting to transfer the property back to himself and Canterbury as tenants in common. The second deed stated: “It is my intention by this deed to sever the joint tenancy created by [the 1991 deed], and to create a tenancy in common.”
Taylor died

14. Taylor v. Canterbury Who owned the property?
Canterbury claimed the deed from Taylor to himself was invalid and she owned 100% as surviving joint tenant.
Trial court and court of appeals concluded that once a joint tenancy is created, the rights of each joint tenant are “fixed and vested.” Held that Taylor couldn’t unilaterally sever.

15. Canterbury v. Taylor Supreme Court concluded: Deed to self valid
Four unities abolished
Creation and severance of joint tenancy depend on the intent of the parties

17. 2006 Amendments to Co-Tenancy Law
Provides the exclusive method of creating a joint tenancy
Confirms that a joint tenancy may only be created between natural persons, except in the case of fiduciaries
Created a presumption that a conveyance to two fiduciaries creates a joint tenancy
Any conveyance to two or more persons which does not create a joint tenancy creates a tenancy in common
There is no Tenancy by the Entirety in Colorado

18. THE FOUR UNITIES
Interest
Title
Time
Possession

19. After Taylor v. Canterbury
Are the four unities still relevant?
Have they been abolished?

20. 2008 Amendments to CRS
The doctrine of the four unities of time, title interest, and possession is continued as part of the law of this state, subject to certain modifications made by the statute
The specified sections which vary from the common law concept of the four unities, are intended to clarify, supplement, and limited to their express terms, modify the four unities

21. 2008 Amendments to CRS
Clarifies and confirms that for the purposes of the statute, the doctrine of the four unities means “the common law doctrine that a joint tenancy is created by the conveyance or devise of real property to two or more persons at the same time of the same title to the same interest with the same right of possession and includes the right of survivorship.”

22. Variance from Four Unities
(1) “Any grantor in any such instrument of conveyance may also be one of the grantees therein.”

23. Variance from Four Unities
5(b) The filing of a petition in bankruptcy by a joint tenant shall not sever a joint tenancy

24. Variance from Four Unities
6(a) The interests in a joint tenancy may be equal or unequal

25. Other important changes
5(a) joint tenant may sever by unilaterally executing and recording an instrument conveying his interest to himself or herself as tenant in common.
Joint tenancy is severed upon recording
Joint tenancy continue among other joint tenants

26. Other important changes
(6) The interests in a joint tenancy may be equal or unequal
Presumed to be equal
Presumption is conclusive if unrecorded as against person relying on the record

27. Other important changes
Section does not bar claims for equitable relief among joint tenants, including partition and accounting
In other words, although interests are equal, a court in equity may allocate proceeds differently

28. 3 or More Joint Tenants with Unequal Shares
Devise to A as to a 60% interest,
to B as to a 20% interest, and
C as to a 20% interest, as joint tenants
C dies
What interests do A and B have?

29. Unequal Joint Tenancy
75% to A
25% to B

30. Unequal Joint Tenancy A owns 75% B owns 25% A dies, what does B own?
100%

31. Unequal Joint Tenancy A owns 75% B owns 25%
B executes a deed to himself as tenant in common with A
What are their interests?

32. A and B are tenants in common
A owns a 75% interest
B owns a 25% interest
If A dies, A’s heirs inherit the 75% interest, and hold as tenants in common with B

33. Important Exception
(6)(d) For purposes of the Medical Assistance Act, a joint tenancy shall be deemed to be a joint tenancy with equal interests regardless of the language in the deed or other instrument

34. Summary Use of “magic words” required to create joint tenancy
If not a joint tenancy, tenancy in common
Joint tenancy may be equal or unequal
Presumed to be equal – conclusive for BFP
Joint tenancy may be severed by deed to self

35. PROOF OF DEATH 2006 STATUTORY REVISIONS
Specifies the Contents of the Supplementary Affidavit
Recognizes Two Conditions – Death Certificate Available and Death Certificate Not Available

36. TITLE STANDARD 7.1.1 Prior Standard
Asks Whether a Death Certificate is Sufficient Without a Supplementary Affidavit Under §
Responds that it is Sufficient for the Purposes of §

37. TITLE STANDARD 7.1.1 Revised
Asks Whether a Death Certificate Recorded Along with a Supplementary Affidavit Under § Makes Title Marketable in Survivor
Conforms to Statute
Indicates Application to Life Estate and Beneficiary Deed
Addresses the Concept of a Verification of Death
Addresses Filing of a Death Certificate and Supplementary Affidavit at Different Times

39. Recent Developments in Joint Tenancy
April 2, 2009
Diane B. Davies