PastPaperHero | Ownership of real property

Learning Outcomes

This article explains core MBE rules on ownership of real property through cotenancy, including:

Distinguishing tenancy in common, joint tenancy, and tenancy by the entirety, with emphasis on survivorship, transferability, default presumptions, and exam-significant deed language.
Identifying creation requirements and severance methods for each form, including the four required elements, mortgages under title- and lien-theory, divorce, and judicial partition.
Analyzing cotenants’ rights to possession, rent, profits, and use, and recognizing when exclusive possession becomes an actionable ouster.
Applying rules on contribution for taxes, mortgage interest, and necessary repairs, and evaluating how voluntary improvements and different types of waste affect accounting and partition.
Evaluating when adverse possession can run between cotenants and what clear notice or repudiation is required to start limitations periods.
Comparing partition in kind and partition by sale as remedies to terminate cotenancy, and predicting how courts adjust for contributions, rents, and improvements in partition actions.
Assessing how leases, mortgages, and creditor claims granted by a single cotenant affect co-owners, survivorship rights, and the interests of third parties.

MBE Syllabus

For the MBE, you are required to understand the rules governing concurrent ownership of real property, with a focus on the following syllabus points:

Distinguish between tenancy in common, joint tenancy, and tenancy by the entirety.
Identify the requirements for creation and severance of each form of cotenancy.
Analyze the rights of possession, use, rent, and profits among cotenants.
Explain the duties regarding repairs, taxes, mortgages, and improvements.
Understand remedies available to cotenants, including partition by sale or in kind.
Recognize the effect of ouster and the rules for adverse possession between cotenants.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Which of the following is a defining feature of a joint tenancy?
1. Right of survivorship
2. Partition by sale is prohibited
3. Co-owners must be married
4. Each owner may only transfer their interest by will
If one cotenant pays the entire property tax bill on a property held as tenants in common, what is the general rule regarding contribution?
1. The paying cotenant cannot recover from the others
2. The paying cotenant may seek contribution from the others
3. The paying cotenant is entitled to the entire property
4. The paying cotenant must partition the property
What remedy is available to a cotenant who is denied access to the property by another cotenant?
1. Ouster and action for rent or partition
2. Only ejectment
3. Only damages for waste
4. None; cotenants cannot sue each other
A, B, and C own land as joint tenants with right of survivorship. A sells her interest to D. What is the result?
1. B and C now own the land as tenants in common with each other and with D
2. B and C remain joint tenants with each other; D is a tenant in common with them
3. The sale severs the entire joint tenancy; all three now hold as tenants in common
4. The sale is ineffective without B and C’s consent
A married couple takes title “to H and W as tenants by the entirety.” H’s individual creditor obtains a judgment against him and seeks to levy on the property. In a jurisdiction recognizing tenancy by the entirety, what is the likely result?
1. The creditor may force a partition by sale
2. The creditor may seize H’s undivided half-interest
3. The creditor cannot reach the property during the marriage
4. The creditor automatically becomes a cotenant with W

Introduction

Real property can be owned by more than one person at the same time. This is known as concurrent ownership or cotenancy. Understanding the types of cotenancy, the rights and obligations of co-owners, and the remedies available when disputes arise is essential for the MBE.

Key Term: Concurrent Ownership
Ownership structure in which two or more persons hold present interests in the same real property at the same time.

Types of Cotenancy

There are three principal forms of concurrent ownership:

Tenancy in Common
Joint Tenancy
Tenancy by the Entirety

Each form has distinct features, especially regarding survivorship, transferability, severance, and creditors’ rights.

Key Term: Tenancy in Common
A form of concurrent ownership where each co-owner holds an undivided, fractional interest in the property, with no right of survivorship. Each interest is freely transferable, devisable, and inheritable.

Key Term: Joint Tenancy
A form of concurrent ownership where co-owners hold equal, undivided interests with a right of survivorship. When one joint tenant dies, that tenant’s interest is extinguished and passes automatically to the surviving joint tenant(s).

Key Term: Tenancy by the Entirety
A form of concurrent ownership available only to married couples (in jurisdictions that recognize it), featuring a right of survivorship and very limited ability for one spouse to transfer or encumber the property without the other’s consent.

Key Term: Right of Survivorship
A feature of some concurrent estates under which a deceased cotenant’s interest automatically passes to the surviving cotenant(s), leaving nothing to pass by will or intestacy.

Tenancy in Common (TIC)

Default form: If a conveyance to two or more persons is ambiguous or silent (e.g., “to A and B”), most jurisdictions presume a tenancy in common.
Only the shared right of possession is required: each cotenant has the right to possess the entire parcel.

Key Term: Shared Right of Possession
The characteristic of concurrent estates under which each co-owner has the right to possess and enjoy the whole property, not merely a physical portion.

Cotenants may have unequal fractional shares (e.g., A holds ¼, B holds ¾), but possessory rights are equal.
Each share is freely alienable inter vivos and at death (by will or intestacy).
No right of survivorship: on death, a tenant in common’s share passes to that cotenant’s estate, not to the other cotenants.

Joint Tenancy (JT)

Joint tenancy is disfavored in many states because it avoids probate, so clear intent is required.

Language often used: “to A and B as joint tenants with right of survivorship, and not as tenants in common.”
At common law, creation requires the four required elements.

Key Term: Four Required Elements
Traditional requirements for a joint tenancy: (1) Time—interests vest at the same time; (2) Title—interests created by the same instrument; (3) Interest—equal, identical shares; (4) Possession—equal rights to possess the whole.

If any element is missing at creation, the grantees take as tenants in common instead.

Each joint tenant’s interest is:

Alienable inter vivos (a joint tenant can transfer their share during life).
Not devisable or inheritable: on death, that interest terminates, and the survivors’ interests expand.

A will that purports to devise a joint tenant’s interest is ineffective; the right of survivorship prevails unless the joint tenancy was previously severed.

Tenancy by the Entirety (TBE)

Tenancy by the entirety is a special form of joint ownership between spouses.

Features:

Available only to couples who are legally married at the time the estate is created.
Many jurisdictions presume a tenancy by the entirety when property is conveyed “to A and B, husband and wife.”
Includes a right of survivorship.
Neither spouse acting alone can convey or encumber the property; any unilateral attempt is generally void.

Creditors of only one spouse usually cannot reach property held by the entirety. Joint creditors of both spouses may be able to do so.

Creation and Severance

Tenancy in Common is the default form if the conveyance is ambiguous or silent.

Joint Tenancy requires:

Clear expression of intent to create a joint tenancy with survivorship, and
Satisfaction of the four required elements (under the traditional view).

Some modern statutes allow a person to create a joint tenancy or sever one by conveying directly to themselves and another (or from “A as joint tenant” to “A as tenant in common”) without using a “straw person,” but the MBE typically assumes the four-element framework unless the fact pattern specifies otherwise.

Key Term: Severance
The process by which a joint tenancy or tenancy by the entirety is converted into a different form of concurrent ownership, usually a tenancy in common, by destroying one or more of the four required elements or ending the marriage.

Common ways to sever a joint tenancy:

Inter vivos conveyance: If one joint tenant sells or gives their share to a third party, the joint tenancy is severed as to that share. The buyer takes as a tenant in common with the remaining joint tenants. The remaining original joint tenants continue to hold their shares in joint tenancy with each other.
Contract of sale: Many courts treat a binding contract by one joint tenant to sell their interest as an equitable conversion that severs the joint tenancy as to that interest.
Mortgage:
- In title theory states, a mortgage is treated as a transfer of legal title and severs the joint tenancy as to the mortgaging tenant.
- In lien theory states (the majority), a mortgage is only a lien on title and does not sever the joint tenancy, though a foreclosure sale will.
Judicial partition: A court-ordered partition (in kind or by sale) terminates the joint tenancy.

Key Term: Partition in Kind
A form of partition in which the court physically divides the property among the cotenants, giving each an individually owned portion.

Key Term: Partition by Sale
A form of partition in which the court orders the property sold and the net proceeds distributed among the cotenants according to their ownership shares.

A joint tenancy is not severed by:

The unilateral execution of a will; a joint tenant’s interest simply ceases at death and passes to survivors.
A temporary lease granted by one joint tenant in many jurisdictions (though the lease ends when that joint tenant dies).

Tenancy by the Entirety arises only if the parties are married and the deed so specifies or the jurisdiction presumes it for married grantees.

A tenancy by the entirety is severed by:

Death of one spouse (survivor takes full title).
Divorce (usually converts to a tenancy in common).
Mutual agreement of both spouses.
Sometimes by execution by a joint creditor of both spouses.

While the marriage lasts, neither spouse acting alone may seek partition in a traditional tenancy by the entirety.

Rights of Cotenants

All cotenants, regardless of form, have equal rights to possess and use the entire property, regardless of their fractional share.

Possession and Use

Each cotenant may occupy and use the whole property. Mere exclusive possession by one cotenant is generally not wrongful as long as the others are not excluded and no rent has been agreed upon.

Key Term: Ouster
The wrongful exclusion of a cotenant from possession of the property by another cotenant, usually after a demand for access is refused, giving rise to claims for rent, damages, or partition.

If one cotenant excludes another (changes the locks, refuses a demand to enter, or otherwise denies the co-owner’s right to possess), an ouster has occurred.

Consequences of ouster:

The excluded cotenant may:
- Bring an action for ejectment or similar possessory action.
- Seek rent (often measured as a proportionate share of the property’s fair rental value) from the date of ouster.
- Seek partition of the property.
Ouster also starts the clock for adverse possession between cotenants, which otherwise rarely runs because possession by one cotenant is presumed to be consistent with the rights of all.

Key Term: Adverse Possession Between Cotenants
A cotenant’s attempt to acquire sole title by adverse possession; requires clear, unequivocal notice to other cotenants of a claim of exclusive ownership, typically through ouster or an equivalent repudiation of the cotenancy.

Absent ouster or unmistakable notice that the possessing cotenant is holding adversely, possession by one cotenant will be treated as possession for all, and a limitations period will not run.

Rent and Profits

A cotenant in possession does not owe rent to the others unless:

There is an ouster, or
The cotenants have an agreement that one will pay rent.

Key Term: Accounting
An equitable action by which one cotenant can require another to share net profits derived from the property, or to reimburse for more than a fair share of expenses.

Rules regarding rent and profits:

Third-party rent: If one cotenant leases the property (or a portion of it) to a third party, that cotenant must account to the other cotenants for their share of the net rents and profits, in proportion to ownership interests.
Profits from exploitation: If a cotenant extracts natural resources or otherwise generates profits from the land, the other cotenants may be entitled to their proportionate share, subject to offsets for expenses and depending on whether the use constitutes waste.

A cotenant who occupies the property alone generally does not owe the others rent for personal use, unless there is ouster or agreement.

Expenses and Repairs

Cotenants must share certain expenses, such as property taxes, mortgage payments, and necessary repairs, in proportion to their ownership interests.

Key Term: Contribution
The right of a cotenant who has paid more than their fair share of common expenses (such as taxes or mortgage interest) to obtain reimbursement from other cotenants for their proportional shares.

Key Term: Necessary Repairs
Reasonable expenses incurred to keep the property in ordinary, habitable condition and prevent substantial deterioration or damage.

General rules:

Taxes and mortgage interest: A cotenant who pays more than their share of these “carrying costs” is typically entitled to contribution from the others, either directly or by crediting these payments in an accounting or partition proceeding.
Necessary repairs: Many courts allow contribution for necessary repairs if:
- The repairs were reasonably necessary, and
- The paying cotenant gave the others notice and an opportunity to participate.
If the paying cotenant is also in exclusive possession, some courts limit contribution to amounts in excess of the fair rental value of that cotenant’s use.

There is generally no right to contribution for improvements, as discussed next.

Improvements

A cotenant who makes improvements at their own expense is not entitled to contribution from the others during the life of the cotenancy, because improvements are voluntary.

Key Term: Improvements
Voluntary additions or changes to the property made by a cotenant that are not strictly necessary to preserve it, such as building structures or adding amenities.

However, improvements do matter at partition:

If the improvement increases the property’s value, the improving cotenant may receive credit for the amount by which the improvement enhanced the property’s partition value.
If the improvement decreases value or is considered wasteful, the improving cotenant may bear the resulting loss.

Waste

Key Term: Waste
Conduct by a person in possession that permanently decreases the value of property, such as destruction, neglect, or overuse beyond what is reasonably consistent with the property’s character.

A cotenant must not commit waste. Other cotenants can bring an action to enjoin waste or recover damages. This includes:

Affirmative waste: Active destruction or removal of valuable fixtures or resources without consent.
Permissive waste: Failure to maintain the property, allowing it to deteriorate.
Ameliorative waste: Substantial alterations that change the character of the property; often not actionable if they increase value, but the rules vary.

Relationships with Third Parties: Leases, Mortgages, and Creditors

A cotenant may generally transfer or encumber only their own interest, not the entire property.

Leases: A lease granted by one cotenant binds only that cotenant’s share. The lessee’s right to possess is limited by the other cotenants’ concurrent rights. Other cotenants are entitled to a share of net rents under an accounting.
Mortgages: A mortgage given by one cotenant encumbers only that cotenant’s interest. In a joint tenancy, the effect on survivorship and severance depends on title vs. lien theory as discussed above.
Creditors: A creditor of one cotenant can generally reach that cotenant’s interest, but not the interests of others. In tenancy by the entirety, creditors of one spouse typically cannot reach the property at all while the marriage continues.

Partition

Any cotenant (except tenants by the entirety acting alone) may seek partition, either in kind (physical division) or by sale, with proceeds divided according to ownership shares.

Key Term: Partition
The legal process by which a court terminates a cotenancy, either by physical division of the land among the cotenants (partition in kind) or by sale of the property and division of the net proceeds (partition by sale).

Courts traditionally prefer partition in kind, especially for large tracts of land, unless:

Physical division is impracticable or impossible (e.g., a single building), or
A sale would better serve the interests of all owners, considering the property’s indivisibility and total value.

Effects of partition:

Ends the cotenancy.
Each former cotenant becomes the sole owner of their allotted parcel or share of sale proceeds.
At partition, the court typically:
- Adjusts for contributions to taxes, mortgage interest, and necessary repairs.
- Accounts for rents and profits received by cotenants.
- Adjusts for improvements by allocating improved portions or value credits to the improving cotenant where equitable.

Worked Example 1.1

Two siblings, A and B, own a house as joint tenants. A sells her interest to C. What is the resulting form of ownership?

Answer:
The sale severs the joint tenancy as to A’s share. C takes A’s former interest as a tenant in common with B. B and C now own the property as tenants in common; B’s right of survivorship is lost as to C’s share, but B’s own one-half interest remains.

Worked Example 1.2

X, Y, and Z own land as tenants in common. X pays the entire property tax bill. Can X recover from Y and Z?

Answer:
Yes. X may seek contribution from Y and Z for their proportional shares of the taxes, as each cotenant is responsible for their share of necessary expenses. If partition occurs, X’s extra payments can be credited before distributing proceeds.

Worked Example 1.3

D and E are cotenants. D builds a swimming pool without E’s consent. At partition, what happens?

Answer:
D is not entitled to contribution for the cost of the improvement, but at partition, D may receive credit for any increase in value attributable to the pool, or bear the loss if the improvement decreased the property’s value compared to similar property without the pool.

Worked Example 1.4

H and W acquire land “as joint tenants with right of survivorship.” One year later, H executes a will purporting to devise “all my interest in the land” to his friend F. H dies with the will in place. Who owns the land?

Answer:
W is the sole owner. A joint tenant’s interest cannot be devised by will. When H died, his joint tenancy interest was extinguished and W’s interest expanded to 100% by right of survivorship. The attempted devise to F was ineffective and did not sever the joint tenancy.

Worked Example 1.5

A and B are joint tenants in a lien-theory state. A mortgages her interest to Bank. A later dies, still in default. Does Bank’s mortgage survive, and who owns the property?

Answer:
In a lien-theory state, A’s mortgage does not sever the joint tenancy. When A dies, B’s interest expands to full ownership by survivorship. Because A’s interest is extinguished at death, Bank’s mortgage—attached only to A’s interest—also disappears. B owns the property free of Bank’s mortgage.

Worked Example 1.6

O conveys “to M and N, husband and wife, as tenants by the entirety.” M’s individual creditor obtains a judgment and seeks to levy on the property. The jurisdiction recognizes tenancy by the entirety. What is the likely result?

Answer:
The creditor cannot reach the property during the marriage. In a tenancy by the entirety, neither spouse can unilaterally convey or encumber the property, and a creditor of only one spouse typically may not force a partition or sale. The creditor must wait until divorce, death, or other termination of the tenancy.

Worked Example 1.7

P and Q are tenants in common. P has lived on the land alone for 20 years, paying all taxes and mortgage payments. Q has never visited the property. P now claims to have acquired Q’s interest by adverse possession. Is P likely to succeed?

Answer:
Not without proof of ouster or clear notice. Possession by one cotenant is presumed to benefit all. For P to acquire Q’s share by adverse possession, P must show that they clearly repudiated the cotenancy—such as by denying Q access or expressly asserting exclusive ownership—and that Q had notice. Mere long-term exclusive possession is generally insufficient.

Exam Warning

On the MBE, do not confuse the right to partition (available to tenants in common and joint tenants) with the right of survivorship (unique to joint tenancy and tenancy by the entirety). Also, remember that ouster requires actual exclusion or a clear denial of another cotenant’s right to possess, not mere exclusive possession.

Revision Tip

If a cotenant is excluded from possession, always consider a claim for rent or partition. If a cotenant pays more than their share of taxes or mortgage interest, contribution is generally available, and adjustments are often made at partition.

Key Point Checklist

This article has covered the following key knowledge points:

There are three main forms of cotenancy: tenancy in common, joint tenancy, and tenancy by the entirety.
Tenancy in common is the default form of concurrent ownership; it requires only a shared right of possession and has no right of survivorship.
Joint tenancy features a right of survivorship and traditionally requires the four required elements (time, title, interest, and possession) and clear survivorship language.
A joint tenant’s interest cannot be devised by will; survivorship prevails unless the joint tenancy is severed during life.
Tenancy by the entirety is available only to married couples, includes survivorship, and generally prevents unilateral conveyances or levy by a creditor of only one spouse.
Each cotenant has equal rights to possess and use the whole property, regardless of the size of their fractional share.
Ouster occurs when a cotenant wrongfully excludes another or refuses a demand for access, potentially giving rise to claims for rent, ejectment, or partition, and starting the clock for adverse possession.
Cotenants must share necessary expenses such as taxes and mortgage interest; contribution is generally available, and courts often adjust accounts in partition.
There is no ongoing right to contribution for improvements, but improvements are taken into account at partition through value credits or allocation of improved portions.
A cotenant must not commit waste; other cotenants can seek to enjoin waste or recover damages.
Any cotenant (except a spouse in a tenancy by the entirety acting alone) may seek partition, usually in kind if feasible, or by sale when physical division is impracticable or inequitable.
Partition terminates the cotenancy and allocates property or proceeds according to ownership shares, adjusted for contributions, rents, and improvements.

Key Terms and Concepts

Concurrent Ownership
Tenancy in Common
Joint Tenancy
Tenancy by the Entirety
Right of Survivorship
Shared Right of Possession
Four Required Elements
Ouster
Adverse Possession Between Cotenants
Contribution
Necessary Repairs
Improvements
Waste
Accounting
Partition
Partition in Kind
Partition by Sale
Severance

Ownership of real property - Cotenancy