Tenancy in common

Key Takeaways

• Tenants in common each hold a separate, undivided interest in the whole property, and their shares may be equal or unequal.
• There is no right of survivorship in a tenancy in common, so a deceased co-tenant's share passes by will or by intestate succession rather than to the surviving co-tenants.
• In Washington, RCW 64.28.020 presumes an interest created in favor of two or more people in their own right is an interest in common unless it is held in partnership or the instrument expressly declares a joint tenancy.
• Any tenant in common may force a division or a sale of the property by bringing a partition action under RCW 7.52.010.

What It Means

Tenancy in common is the default way two or more people own real property together. Each co-tenant owns a fractional share of the whole, and the share is undivided, meaning nobody owns a marked-off piece of the ground. A person holding one-quarter of a duplex as a tenant in common has the right to use all of it, not the right to occupy one specific unit.

Two features drive most exam questions. First, the shares need not be equal. Three owners can hold 50 percent, 30 percent, and 20 percent, and each of them may sell, mortgage, or will away that share without the others agreeing. Second, there is no right of survivorship. When a tenant in common dies, the share drops into that owner's Estate and passes under the will or through intestate succession, which is the line that separates a tenancy in common from a joint tenancy where the survivor takes. A co-tenant who wants out and cannot get agreement from the others sues for partition and lets a court unwind it.

How It Works in Washington

Washington makes the tenancy in common the fallback form of co-ownership. RCW 64.28.020 provides that "Every interest created in favor of two or more persons in their own right is an interest in common, unless acquired by them in partnership, for partnership purposes, or unless declared in its creation to be a joint tenancy." RCW 64.28.010 backs that up from the other side: a joint tenancy "shall be created only by written instrument, which instrument shall expressly declare the interest created to be a joint tenancy." So a Washington deed to two people that says nothing further creates a tenancy in common, and the drafter who wanted survivorship had to say so.

One Washington wrinkle sits on top of that rule. RCW 64.28.020 also presumes that when spouses or state registered domestic partners hold an interest in common together, it is their Community Property. At death, a tenant in common's share is distributed under the will, and if there is none, under RCW 11.04.015, which routes the estate to the surviving spouse or domestic partner and the decedent's children in statutory shares. That is why one Intestate death among four co-owners can leave a listing broker negotiating with a group of heirs rather than a single seller. When co-tenants deadlock, RCW 7.52.010 lets any one of them maintain an action for partition of the property.

Example

Three friends buy a cabin near Leavenworth for $600,000. Marcus Hill contributes $300,000, Dana Wu contributes $180,000, and Ray Bettencourt contributes $120,000, so the Deed conveys to them as tenants in common in shares of 50 percent, 30 percent, and 20 percent. The deed says nothing about joint tenancy, which under RCW 64.28.020 is precisely what leaves it a tenancy in common.

Four years later Ray dies without a will and without a spouse. His 20 percent does not go to Marcus and Dana. It passes through his estate under RCW 11.04.015 to his two adult children, so the cabin now has four names on title and Ray's children hold 10 percent each. Marcus wants to sell and the children do not, and nobody can convey the whole cabin without every owner signing. Marcus has two moves. He can sell his own 50 percent to a stranger, who becomes a tenant in common with the rest, or he can file a partition action under RCW 7.52.010 and ask the court to divide the property or order it sold and the proceeds split by share.

Common Mistakes and Exam Traps

• Undivided does not mean equal. Tenants in common can hold unequal shares, and undivided means no co-tenant owns a specific physical piece of the property.
• There is no right of survivorship in a tenancy in common. A deceased co-tenant's share goes to the heirs or devisees, and the surviving co-tenants gain nothing.
• A Washington deed to two or more people that is silent about the form of ownership creates a tenancy in common, because RCW 64.28.010 requires a joint tenancy to be expressly declared in a written instrument.
• One co-tenant can sell or mortgage only that co-tenant's own fractional share. Conveying the entire property takes every co-tenant's signature, and the remedy when they will not sign is a partition action.