Real Estate Salesperson · Forms of ownership, transfer and recording of title · 7 min read
Severalty, Tenancy in Common and Joint Tenancy
- Distinguish between sole ownership in severalty and concurrent ownership forms such as tenancy in common and joint tenancy.
- Explain the legal unities, survivorship characteristics, transfer rules, and partition methods that govern tenancy in common and joint tenancy.
- Identify the professional boundaries of a real estate salesperson regarding ownership types, legal advice, and client referrals under a supervising broker's guidance.
Ownership in Severalty
Ownership in severalty occurs when title to real property is held by a single individual or a single legal entity. Although the word severalty might sound like it refers to several owners, it actually derives from the concept of being severed. Severalty reflects ownership that is separate from any co-owners, meaning the property has only one owner holding total legal control.
Sole ownership is not limited to natural persons. A corporation, partnership, or limited liability company holds title in severalty when it is the property's sole owner. In these situations, the legal entity acts as a single legal person in the eyes of the law, retaining individual ownership of the real estate separate from its individual members, partners, or shareholders.
An owner in severalty generally enjoys broad authority over the asset. Subject to applicable law and the rights of others, such as lienholders or a spouse, an owner in severalty generally may sell, lease, mortgage, or transfer the property without another co-owner's consent. This freedom exists because there are no concurrent owners whose rights could be compromised by unilateral decisions.
When an individual holding title in severalty passes away, specific estate procedures govern the distribution of the asset. Unless a valid nonprobate transfer applies, property owned in severalty by an individual who dies passes under the individual's valid will or state intestacy law. In addition, property owned in severalty by a deceased individual generally passes through probate unless a valid nonprobate transfer or other applicable procedure allows it to pass outside probate.
Common mistakes
- Believing ownership in severalty means multiple owners, when it actually means sole ownership severed from all others.
- Assuming a joint tenant can devise their co-ownership share in a will, ignoring that the right of survivorship automatically supersedes testamentary disposition.
- Thinking an outside purchaser who buys a joint tenant's share enters as a joint tenant, rather than as a tenant in common due to missing unities of time and title.
- Advising a client on which title form to choose rather than directing legal questions to an attorney and tax questions to a tax professional under the supervising broker's guidance.
Key points
- Ownership in severalty occurs when title is held by a single individual or single legal entity, severed from any co-owners.
- Tenancy in common involves undivided fractional interests with only the unity of possession required, allowing equal or unequal shares and transfer without co-owner consent.
- Tenancy in common features no right of survivorship; a deceased owner's interest passes under a valid will, state intestacy law, or an applicable nonprobate transfer, generally entering probate.
- Joint tenancy requires the four unities of possession, interest, time, and title, and is defined by the right of survivorship, which passes title outside probate and supersedes any will.
- Conveying a joint tenant's interest during life severs the joint tenancy for that share, making the new purchaser a tenant in common while remaining original owners retain joint tenancy between themselves.
- Partition terminates concurrent ownership either through voluntary agreement or judicial action, resolving into physical division (partition in kind) or property sale and distribution of proceeds (partition by sale).
- Salespersons working under a supervising broker may explain general ownership concepts but must refer specific title questions to an attorney and tax questions to a tax professional.
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