Often, a person will draft a will that devises, upon his or her passing, that property or properties will go to his or her heirs as “joint tenancy with the right of survivorship” or similar language. Per the joint tenancy and per Colorado law, each heir owns an undivided interest in the entire property in common with the other heirs. In other words, each heir owns and possesses the property.
Note that the emphasis on the right of survivorship, which will be explained. A joint tenancy contrasts with a tenancy in common, wherein each person possessing the property owns a portion of the property. For instance, dad devises a property in his will to his two children that each child will own half of the property. The two children become tenants in common and neither would have a right of survivorship. Joint Tenancy with the Right of Survivorship Under English Common Law, the following four items are necessary for land ownership:
● Time; and
In this context, joint tenancy with a right of survivorship must satisfy the four elements, as will be explained.
● Interest. Each owner’s interest is equal to the other’s, whatever that interest may be. For instance, all must own in “fee simple absolute” or a “lifetime” estate.
● Title. Each must take title to the property in the same way, by will, by purchase etc. This means that each heir must take under the same document. If a father gave one half to one child via gift and another half to a different child via deed then this element will not be satisfied.
● Time. Each must take ownership at the same time.
● Possession. Each much have an undivided stake or ownership in the property.
Right of Survivorship
A feature of the joint tenancy is that the estate is based on survivorship. This means that if one heir dies, the other heir or heirs take over that person’s ownership interest. For instance, dad dies and devises his property in Aspen to his three children, Steve, Bill, and Janet. Later, Steve dies and devises his interest in the Aspen property to his children. Because the property is with a right of survivorship, Steve’s children will not inherit any interest in the Aspen property. Instead, through the right of survivorship, Bill and Janet, as survivors of Steve, take Steve’s interest in the property.
Sale of the Property
As mentioned, a joint tenancy means each owns an undivided interest in the entire property. Because each owner has an interest in all of the property, someone wishing to purchase part of the property must purchase the property from all owners. For instance, dad devises a 100-acre property to his children Steve, Bill, and Janet. Ben wants to purchase 10 acres of that property. Ben cannot just purchase 10 acres from Steve because all three have ownership interests in any part of the property; instead, Ben can purchase 10 acres only if Steve, Bill, and Janet are willing to sell him 10 acres of the property.
Are you active in complex real estate transactions in Colorado? You need an attorney who knows the law and knows the market. For questions about slander of title or other real estate legal needs in Colorado, contact the Law Offices of Eric L. Nesbitt, P.C. at 303-741-2354 or Info@NesbittLawOffices.com.