A joint tenancy and a tenancy in common are both legal arrangements that allow two or more people to share ownership of property. However, the legal relationship between joint tenants and tenants in common differs, and different rules apply when one tenant leaves or dies.
According to Free Legal Encyclopedia, joint tenancy consists of four elements. First, each joint tenant has an equal, undivided right in the property - no joint tenant's share can be larger or smaller than any other joint tenant's share. Second, the ownership rights of each joint tenant are vested, meaning they cannot change during the life of the joint tenancy. Third, the joint tenants all hold the property under the same title. Finally, each tenant has an equal right to the property until one dies, at which time that joint tenant's right to the property belongs to the other joint tenant(s).
In a tenancy in common, each tenant in common has individual ownership right in the property, that he or she may sell without the permission of the other tenant or tenants in common. Tenants in common may hold shares in various sizes. Finally, when a tenant in common dies, his or her interest in the property belongs to his or her heirs, not the other tenants in common.
The Free Legal Encyclopedia notes that the rules on how to sell an interest in property differ depending on whether the owners are joint tenants or tenants in common. If joint tenants want to sell an entire property, they must all agree on the terms of the sale, and any proceeds must be divided equally among them. Tenants in common, however, may split the proceeds depending on the size of each tenant's interest. Also, if one joint tenant decides to sell his interest in the property, the sale breaks the joint tenancy. The buyer will have a tenancy in common with the remaining tenants. Tenants in common, however, remain tenants in common even if one decides to sell his or her share.
Neither a joint tenancy nor a tenancy in common should be used as a substitute for a will, according to the Iowa State Bar Association. Although a joint tenancy means the surviving joint tenant or tenants receive the property if one joint tenant dies, the transfer refers to that property only. The joint tenant may own other property that would still have to be distributed by a court. Also, a will is simpler to change than a joint tenancy. Any joint tenant may veto a change in a joint tenancy, but a will can be changed by its writer at any time without a third-party vote.
A tenancy in common reverts to an heir if the tenant-in-common dies, but it does so under whatever default laws apply if there is no will. These rules may produce results that are against the wishes of the deceased. Also, the new tenant in common may not work well with the remaining tenants in common.
The Free Legal Encyclopedia notes that because a joint tenancy is one property interest held equally by multiple people, it can be created by use of one document detailing the identity of the property and identifying the joint tenants. Joint tenants receive their interest in a property simultaneously through this single document.
Tenants in common, on the other hand, have separate individual interests in the same property. Therefore, they may receive an interest in the property at different times, through separate documents.
A special type of joint tenancy, known as a tenancy by the entirety, can be created only between a married couple, according to the Iowa State Bar Association. A tenancy by the entirety ensures that, if one spouse dies, the entire property interest passes to the surviving spouse. A tenancy by the entirety also protects the property from either spouse's creditors, since it belongs equally to both parties. One disadvantage to a tenancy by the entirety, however, is that neither spouse can sell or give away his or her right to the property. If the spouses divorce, their tenancy by the entirety is converted to a tenancy in common, and either one may sell his or her portion.
A tenancy in common may be created between spouses, but it has no special features especially for married couples. Rather, the tenancy in common follows regular rules for such tenancies, including the right of either spouse to sell his or her share and the passing of the property to an heir if one spouse dies. The heir may be the surviving spouse, or it may be another individual.