Recent Developments
in Joint Tenancy
April 2, 2009
Diane B. Davies
What is a Joint Tenancy
 Form of ownership in which each joint
tenant possesses the entire estate, rather
than a fractional share
Four Unities
 Interest
 Title
 Time
 Possession
Four Unities
Blackstone
 One and the same interest
 Accruing by one and the same
conveyance
 Commencing at one and the same time
 Held by one and the same possession
Common Law
 At early common law, a conveyance to two
or more persons (other than a husband
and wife) presumed to create a joint
tenancy.
 Evolved to a presumption of tenancy in
common
Colorado Statutes
C.R.S. § 38-31-101
Predecessor statute adopted by the
Territorial Legislature in 1861
Required Language
 In Joint Tenancy
 As Joint Tenants
 JTWROS
 As Joint Tenants with Right of Survivorship
 In Joint Tenancy with Right of Survivorship
Deed to Self
 “Any grantor in any such instrument of
conveyance may also be one of the
grantees therein.”
The Four Unities
Interest
Title
Time
Possession
Survivorship
 The survivor does not take any new or additional
interest on the death of his joint tenant - takes
under original conveyance or devise
 The death of a joint tenant does not result in a
transfer of that tenant's interest to the survivor,
but merely terminates any interest of the
decedent
 Any liens existing against the deceased joint
tenant's interest are extinguished
 Result of the unity of interest
Severance of a Joint Tenancy
 Conveyance of the interest of one joint tenant
 Mortgage of one joint tenant’s interest in a title
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theory state – not Colorado
Execution sale on one joint tenant’s interest –
but not attachment of judgment lien
Contract or agreement
Destruction of one of the four unities
Modern View – Intent to terminate right of
survivorship
Severance of Joint Tenancy
 Felonious killing of a joint tenant
 Dissolution of marriage, except as
provided in an agreement or court order
 Unilaterally executing and recording an
instrument conveying his interest to
himself as tenant in common?
Taylor v. Canterbury
 Taylor conveyed ranch to himself and
Canterbury as joint tenants
 Taylor subsequently executed a quitclaim deed
from purporting to transfer the property back to
himself and Canterbury as tenants in common.
The second deed stated: “It is my intention by
this deed to sever the joint tenancy created by
[the 1991 deed], and to create a tenancy in
common.”
 Taylor died
Taylor v. Canterbury
 Who owned the property?
 Canterbury claimed the deed from Taylor
to himself was invalid and she owned
100% as surviving joint tenant.
 Trial court and court of appeals concluded
that once a joint tenancy is created, the
rights of each joint tenant are “fixed and
vested.” Held that Taylor couldn’t
unilaterally sever.
Canterbury v. Taylor
Supreme Court concluded:
 Deed to self valid
 Four unities abolished
 Creation and severance of joint tenancy
depend on the intent of the parties
2006 Amendments to
Co-Tenancy Law
 Provides the exclusive method of creating a joint
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tenancy
Confirms that a joint tenancy may only be
created between natural persons, except in the
case of fiduciaries
Created a presumption that a conveyance to two
fiduciaries creates a joint tenancy
Any conveyance to two or more persons which
does not create a joint tenancy creates a
tenancy in common
There is no Tenancy by the Entirety in Colorado
THE FOUR UNITIES
 Interest
 Title
 Time
 Possession
After Taylor v. Canterbury
 Are the four unities still relevant?
 Have they been abolished?
2008 Amendments
to CRS 38-31-101
 The doctrine of the four unities of time, title
interest, and possession is continued as
part of the law of this state, subject to
certain modifications made by the statute
 The specified sections which vary from the
common law concept of the four unities,
are intended to clarify, supplement, and
limited to their express terms, modify the
four unities
2008 Amendments
to CRS 38-31-101
 Clarifies and confirms that for the
purposes of the statute, the doctrine of the
four unities means “the common law
doctrine that a joint tenancy is created by
the conveyance or devise of real property
to two or more persons at the same time
of the same title to the same interest with
the same right of possession and includes
the right of survivorship.”
Variance from Four Unities
(1) “Any grantor in any such instrument of
conveyance may also be one of the
grantees therein.”
Variance from Four Unities
5(b) The filing of a petition in bankruptcy by
a joint tenant shall not sever a joint
tenancy
Variance from Four Unities
6(a) The interests in a joint tenancy may be
equal or unequal
Other important changes
 5(a) joint tenant may sever by unilaterally
executing and recording an instrument
conveying his interest to himself or herself
as tenant in common.
 Joint tenancy is severed upon recording
 Joint tenancy continue among other joint
tenants
Other important changes
 (6) The interests in a joint tenancy may be
equal or unequal
 Presumed to be equal
 Presumption is conclusive if unrecorded
as against person relying on the record
Other important changes
 Section does not bar claims for equitable
relief among joint tenants, including
partition and accounting
 In other words, although interests are
equal, a court in equity may allocate
proceeds differently
3 or More Joint Tenants with
Unequal Shares
Devise to A as to a 60% interest,
to B as to a 20% interest, and
C as to a 20% interest, as joint tenants
C dies
What interests do A and B have?
Unequal Joint Tenancy
 75% to A
 25% to B
Unequal Joint Tenancy
 A owns 75%
 B owns 25%
A dies, what does B own?
100%
Unequal Joint Tenancy
 A owns 75%
 B owns 25%
 B executes a deed to himself as tenant in
common with A
What are their interests?
 A and B are tenants in common
 A owns a 75% interest
 B owns a 25% interest
If A dies, A’s heirs inherit the 75% interest,
and hold as tenants in common with B
Important Exception
(6)(d) For purposes of the Medical
Assistance Act, a joint tenancy shall be
deemed to be a joint tenancy with equal
interests regardless of the language in the
deed or other instrument
Summary
 Use of “magic words” required to create
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joint tenancy
If not a joint tenancy, tenancy in common
Joint tenancy may be equal or unequal
Presumed to be equal – conclusive for
BFP
Joint tenancy may be severed by deed to
self
PROOF OF DEATH
2006 STATUTORY REVISIONS
 Specifies the Contents of the
Supplementary Affidavit
 Recognizes Two Conditions – Death
Certificate Available and Death
Certificate Not Available
TITLE STANDARD 7.1.1
Prior Standard
 Asks Whether a Death Certificate is
Sufficient Without a Supplementary
Affidavit Under §38-31-101
 Responds that it is Sufficient for the
Purposes of §38-35-112
TITLE STANDARD 7.1.1
Revised
 Asks Whether a Death Certificate Recorded
Along with a Supplementary Affidavit Under
§38-31-101 Makes Title Marketable in Survivor
 Conforms to Statute
 Indicates Application to Life Estate and
Beneficiary Deed
 Addresses the Concept of a Verification of
Death
 Addresses Filing of a Death Certificate and
Supplementary Affidavit at Different Times
Recent Developments
in Joint Tenancy
April 2, 2009
Diane B. Davies