Understanding Cotenancy: A Tale of Three Tenants

Tenants in Common: The Flexible Friends

Tenants in common (TIC) is the most common form of cotenancy in Texas. This arrangement allows two or more people to own property together, with each owning a specific share. The beauty of TIC is its flexibility. Owners can have unequal shares, and each can sell or transfer their share independently. When one owner passes away, their share goes to their heirs, not the other co-owners.

This form of ownership is common is mineral estates across Texas, where fractional ownership has been divided again and again over generations. 

Consider this case. In this scenario, Joel and his father George owned a parcel of land as tenants in common. They leased the land to Richard on a year-to-year oral agreement. One year, Joel wanted cash rent, but Richard did not agree. George, without Joel's consent, entered into a ten-year lease with Richard. Joel sought to eject Richard, but the court held that each tenant in common could lease their interest without the other's consent. This case highlights the flexibility of tenants in common, where each owner can independently manage their share.

One of the main challenges with tenants in common is the potential for conflicts over decision-making. Since each co-owner has the right to use and occupy the entire property, decisions regarding renovations, selling, or leasing require the consent of all co-owners. This can lead to delays and disagreement. Additionally, there is the risk of unequal financial responsibility, where one co-owner may end up paying more for expenses like mortgage payments or repairs. Another pitfall is the lack of control over who you end up co-owning the property with, as any co-owner can sell their interest without the consent of the others.

Joint Tenancy with Rights of Survivorship: The Survivors

Joint tenancy with rights of survivorship (JTWROS) is like the buddy system of property ownership. In this arrangement, co-owners have equal shares, and when one owner dies, their share automatically passes to the surviving owners. This can be a great way to avoid probate, but it requires all owners to acquire their interest at the same time and under the same title. It's less common in Texas compared to TIC, but still a popular choice for those looking to simplify inheritance.

Let's look at a situation that illustrates this concept. A property was conveyed to a mother and her son as joint tenants with right of survivorship. Later, the mother executed a quitclaim deed granting her interest to her grandson. After her death, the son claimed full ownership as the surviving joint tenant. However, the court ruled that the mother's second deed severed the joint tenancy, converting it into a tenancy in common and destroying the survivorship rights. This case illustrates how joint tenancy can be unilaterally severed, affecting the right of survivorship.

Joint tenancy with rights of survivorship can be problematic due to the need for agreement among all co-owners. If relations between the co-owners deteriorate, such as in a separation or divorce, both parties must agree on any sale or transfer of the property. Another issue is the potential for assets to be frozen if one co-owner faces legal troubles, such as bankruptcy or creditor claims. Additionally, joint tenancy can unintentionally disinherit children or other heirs, as the property automatically passes to the surviving co-owner, regardless of any will or trust.

Tenancy by the Entirety: The Marital Duo

Tenancy by the entirety is a special form of joint tenancy available only to married couples. It offers the same right of survivorship as JTWROS but adds an extra layer of protection. Neither spouse can sell or transfer their interest without the other's consent. This can be a great way to protect the family home from creditors, but it's not recognized in Texas. Instead, Texas law defaults to community property rules for married couples.

Tenancy by the entirety offers strong protections for married couples, but it also has its drawbacks. One significant challenge is the inflexibility, as neither spouse can sell or transfer their interest without the other's consent. This can be a hindrance if one spouse wants to make changes to the property. Additionally, tenancy by the entirety is only available to married couples, so it is not an option for unmarried partners or other types of relationships. Another potential issue is the complexity in estate planning, as the surviving spouse automatically inherits the property, which may not align with the couple's overall estate plan.

Community Property Laws in Texas: The Equal Partners

In Texas, community property laws play a significant role in property ownership for married couples. Under these laws, most property acquired during the marriage is considered jointly owned by both spouses, regardless of who paid for it. This means that even if only one spouse's name is on the deed, the property is still considered community property. This can complicate things if the couple divorces or if one spouse passes away, as the property must be divided equally.

Let's look at a practical example. The Johnsons and the Smiths, both married couples, jointly purchased a vacation property. The Johnsons opted for tenancy by the entirety, while the Smiths chose tenancy in common. When Mr. Smith faced a lawsuit, his share of the property was at risk. However, the Johnsons' share was protected from creditors due to the tenancy by the entirety, which offers unique protections for married couples.

Which is Most Common in Texas?

In Texas, tenancy in common is the default and most common form of cotenancy. This is largely due to its flexibility and the fact that it doesn't require the same level of coordination and agreement as JTWROS. For married couples, community property laws often take precedence, making tenancy by the entirety unnecessary.

A Final Word

Understanding the differences between tenants in common, joint tenancy with rights of survivorship, and tenancy by the entirety can help you make informed decisions about property ownership. Whether you're planning your estate, buying a home with friends, or navigating the complexities of community property laws, knowing your options is key. And remember, when in doubt, consult with a legal professional to ensure your property interests are protected.