Concurrent or Common Ownership

Pennsylvania does not allow joint tenants to sever the right of survivorship by a deed to themselves

/ Concurrent or Common Ownership

In this case, a mother conveyed real property to her son and to herself as joint tenants. Later the mother sued for partition and then attempted  to sever the joint tenancy from conveying her 50 percent interest to herself. The mother died before the partition proceedings had finished and she left her  50 percent interest to her daughter. If her deed to herself severed the joint tenancy, the daughter would win and own a 50 percent interest as a tenant in common with her brother. If the deed did not sever the joint tenancy and end the right of survivorship, the brother would own a 100% interest and the daughter would own nothing. Affirming the rulings of the lower courts, the Pennsylvania Supreme Court held in Grant v. Grant, 341 A.3d 685 (Pa. 2025), that you cannot sever a joint tenancy by conveying your fractional interest to yourself. The court …

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Real property can be partitioned based on equitable factors even if only party’s name is on the deed

/ Concurrent or Common Ownership, Marital Property, Title Issues

North Dakota law allows partition of real property when two parties intend to share ownership of the house, and they both contribute to its purchase and/or maintenance, even if the deed is in the name of only one of the parties. Berger v. Repnow, 2025 ND 25, 16 N.W.3d 452 (N.D. 2025) (applying N.D. Cent. Code §32-16-01. The court explained that North Dakota law affirms that “although legal ownership of property is strong evidence of an intention to not share property, legal ownership is not dispositive when the person who is not the legal owner has financially contributed to the acquisition of the property.” However, the court held that the trial court erred in granting title to the house to one of the parties rather than dividing it between them by “determin[ing] the parties’ respective ownership interests based on their contributions to [the] property and any other relevant factors, and …

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Joint tenancy not severed by tax lien before foreclosure

/ Concurrent or Common Ownership

States disagree about what acts are sufficient to sever a joint tenancy and end the right of survivorship. The Maine Supreme Judicial Court has held that a tax lien, by itself, does not sever a joint tenancy before foreclosure. Estate of Priest, 2025 ME 24, 331 A.3d 451 (Me. 2025). In this case the property owners paid the delinquent taxes before expiration of the 18 month redemption period, and that payment was confirmed by quitclaim deeds issued by the town. Because there was no severance, the surviving joint tenant became the sole owner of the property on the death of her co-owner husband.

Restraints on sale of tenancy in common interests are void even if intended to keep the property in the family

/ Concurrent or Common Ownership, Restraints on Alienation, Wills and Inheritance

A homeowner created a trust that would transfer title to her home to her three children at her death, but also provided that the children could not sell the property to anyone but their siblings and for an amount below fair market value. A state court in California held the restraint on alienation unreasonable and void both because it severely limited the class of potential buyers and denied the owners the fair market value of their interests. Godoy v. Linzer, 327 Cal. Rptr. 3d 323 (Ct. App. 2024). The court was applying a long-established California statute that provides that restraints on alienation are void when “repugnant to the interest created.” Ca. Civ. Code §711. That provision has been interpreted to allow restraints on alienation when reasonable, but the court found that there is a very strong presumption of invalidity of restraints on fee simple interests. Courts sometimes uphold restraints on …

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HOA cannot prohibit short-term leasing if original covenants contained no restraints on alienation

/ Concurrent or Common Ownership, Condominiums and Homeowners Associations, Servitudes

A North Carolina court refused to allow a homeowners association (HOA) to amend its covenants to ba short-term leasing (leasing for less than 90 days) even though the HOA followed the correct procedures to amend the covenants and nothing limited their power to adopt the restriction. McDougald v. White Oak Plantation Homeowners Ass’n, 904 S.E.2d 180 (N.C. Ct. App. 2024). The modern approach to covenants tends to see them as valuable property rights and the ability of an association to “govern” the association by imposing limits on land use as a welcome power, the traditional approach viewed covenants as meddlesome encumbrances on ownership that burden an owner’s freedom to use their property as they see fit, especially when ownership is held in fee simple. These contrasting attitudes mean that the modern approach interprets ambiguities in the declaration to achieve the intent of the grantor and perhaps even to give the …

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What happens when unmarried couples purchase property as tenants by the entirety?

/ Concurrent or Common Ownership

Only married couples can own property as tenants by the entirety so what happens if an unmarried couple buys property with a deed that purports to convey a tenancy by the entirety interest? If we presume that the goal was to create a right of survivorship, then we should interpret it as a joint tenancy. If we adopt the general presumption in favor of tenancy in common for ambiguous conveyances, then it should be a tenancy in common. The D.C. Court of Appeals adopted the former assumption and interpreted a conveyance to a father and a son as a joint tenancy finding the entireties language sufficient to overcome the statutory preference for tenancies in common. In re Estate of Hamilton, 299 A.3d 542 (D.C. 2023).

Joint tenancy severed by agreement

/ Concurrent or Common Ownership

The Massachusetts Supreme Judicial Court has held that joint tenants can sever the joint tenancy and destroy the right of survivorship by agreement. Furnas v. Cirone, 221 N.E.3d 772 (Mass. 2023). While a joint tenant does not sever the joint tenancy by moving out, severance does happen when when the parties agree that one owner will remove all his personal property, continue to make monthly payments to his co-owner for half the monthly mortgage payment, and that the co-owner would either refinance or put the property up for sale. This agreement, by itself, was sufficient in the court’s eyes to “sever” the joint tenancy and turn the interests into tenancy in common interests.

Texas Supreme Court interprets life estate as a fee simple because the remainders were subject to divestment

/ Concurrent or Common Ownership, Estates and Future Interests, Real Estate Transactions, Wills and Inheritance

In Jordan v. Parker, 2022 WL 17998227 (Tex. Dec. 30, 2022), the Texas Supreme Court held that a conveyance of a life estate actually conveyed a fee simple since the remainders were subject to alteration or even complete divestment by the life estate owner. In this case, a man devised his entire estate to his widow for life with remainders in their children, but the devise gave the widow complete power to transfer both the life estate property and to redirect ownership of the remainders. Part of the estate was a fractional ownership interest in a ranch. Some years later, while the widow was still alive, a son who was a remainder owner conveyed his remainder interest to his daughters (the granddaughters of the widow and the testator). The widow never exercised her power to alter the remainders in her children during her lifetime, and the question was whether the widow …

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Homeowners Association architecture regulations must be reasonable and authorized by governing documents

/ Concurrent or Common Ownership, Condominiums and Homeowners Associations

The Nevada Supreme Court adopted §6.7 and §6.9 of the Restatement (Third) of Property (Servitudes) and held that restrictions on construction (including architectural review committees) are only valid if owners are on notice of them and they exercise their powers “reasonably.” Moretto Trustee of the Jerome F. Moretto 2006 Trust, v. ELK Point Country Club Homeowners Ass’n, Inc., 507 P.3d 199 (Nev. 2022). Those sections state that no homeowners association has implied power to regulate the architecture of individual units unless the governing documents (the declaration that establishes the association) explicitly confers that power on the association, and even then, the exercise of that power must be reasonable. In this case, the governing bylaws required owners to get board approval before building any structure on their property. After purchasing a lot subject to the bylaws, the executive board created an architectural review committee and some architectural guidelines. One of the owners …

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