A right of survivorship is considered a concurrent interest in property law. A concurrent interest is an interest held in common with other co-tenants; co-tenants have interests that are fractionally the same. These interests involve two or more individuals who hold equal interests in the same real estate or property.
Concurrent Interests Overview
Concurrent interests are interests in land rather than estates in land. Concurrent interests define the relationship between individuals who hold equal rights in property. One of the most basic forms of concurrent interest is a tenancy in common; a more complex version of a concurrent interest is a joint tenancy with right of survivorship. A tenant in common has a simultaneously held, yet distinct, interest in property.
A fractional interest of a co-tenant is undivided, meaning no matter what the fraction each co-tenant owns, each has the right to use and possess the whole of the property. None of the co-tenants have an identifiable portion, as none of the co-tenants have a right to possession that is superior to other co-tenants. If a co-tenant is in possession of the property, he is not liable to pay rent to other co-tenants. However, co-tenants have the responsibility to protect their common title by taking care of the property.
Joint Tenancy with a Right of Survivorship
Under a tenancy in common, co-tenants may leave their interests to heirs. In a joint tenancy, co-tenants cannot "devise" their interest. In other words, joint tenants with rights of survivorship cannot leave their interest to heirs in a will. Instead, co-tenants own undivided, fractional interests, but at the death of each co-tenant, the interest of the deceased co-tenants pass automatically to the surviving co-tenants. Thus, if there are three co-tenants and one dies, the remaining two co-tenants automatically receive half of the deceased co-tenant's one-third interest.
Under the common law, joint tenancies were the preferred type of concurrent interest. Generally, if any ambiguity existed, a joint tenancy was presumed to be the intent of the parties. The purpose of the presumption was to keep property in families and to keep family estates intact. However, today, the presumption is reversed and tenancies in common are preferred.
Ellis Roanhorse has been writing professionally since 2007. His work has been published in the "Loyola Law Review," "The Portland Mercury" and "Carillon Magazine." Roanhorse holds a Master of Arts in political science from the University of Chicago and a Juris Doctor from the Loyola Marymount School of Law.