November 13, 2017 § Leave a comment
Does the filing of a partition suit convert a joint tenancy with right of survivorship into a tenancy in common?
Richard Turner and Brenda Seymour purchased a home together in 1995. The deed recited that they held the property as “joint tenants with express right of survivorship, and not as tenants in common.”
In early 2011, Brenda filed a complaint to partite the property per MCA 11-21-3, which allows partition between joint tenants. Brenda died in November, 2012, and her estate was substituted as plaintiff. The chancellor ruled at a hearing in February, 2016, that the filing of the partition suit did not terminate the joint tenancy with right of survivorship, and that, therefore, Richard became sole owner of the property by survivorship after Brenda’s death. The Administrator of Brenda’s estate appealed.
In Seymour v. Turner, decided October 3, 2017, the COA affirmed. Judge Irving’s opinion is informative on joint tenancy and tenancy in common, and the effect a partition action has on them:
¶6. Joshua points out that four unities—time, title, interest, and possession—must be present in a joint tenancy, and if one of the four unities is eliminated or terminated, the joint tenancy defaults into a tenancy in common. He argues that when Brenda filed the lawsuit on February 3, 2011, the filing terminated the joint tenancy existing between the parties and rendered it a tenancy in common, because the unity of possession had been severed. “Unity of possession” means that each joint tenant must have an undivided share in the property. See Wilder v. Currie, 231 Miss. 461, 474, 95 So. 2d 563, 566 (1957). He contends that that was no longer the case upon the filing of the petition to partite, as once the partition suit was filed, Brenda was requesting either a division in kind or a division by sale. Consequently, he argues that the joint tenancy was transformed into a tenancy in common, which is not accompanied by a right of survivorship. Therefore, according to him, Brenda’s death did
nothing to deprive her estate of its ownership interest in the property.
¶7. We do not disagree with Joshua’s contention that “[t]here must be unity of title, time, interest[,] and possession in a joint tenancy.” Thornhill v. Chapman, 748 So. 2d 819, 828 (¶30) (Miss. Ct. App. 1999). The question here is, did the joint tenancy convert to a tenancy in common at the time that Brenda filed her suit to partite the property, vesting her interest in the property and eliminating the right-of-survivorship provision? We find that it did not. This Court has held:
[T]he distinguishing characteristic of a joint tenancy is the right of survivorship. By virtue of survivorship, the property descends outside of
probate from the deceased joint tenant to the surviving joint tenant. The requirements for the creation of a joint tenancy with right of survivorship in land are governed by statute. Ownership of the whole and then taking the whole by survivorship are the outstanding features of owning property as joint tenants. The decedent’s share does not have to pass to the survivor because the survivor already owns the whole. The usefulness of the joint tenancy as one property-law expert explained is that it serves as a “poor man’s probate.” With the above said about joint tenancy and its feature of survivorship, one point becomes clear about this case: [Carolyn] Jones owned the whole along
with [Anthony] Graphia while they were joint owners. However, when Graphia filed to partite the property, as joint tenants are allowed to do, then Jones’s interest was subject to division by the chancellor. Prior to the chancery proceeding, Jones enjoyed the ownership of the whole. Jones lost this enjoyment when Graphia, her joint tenant, filed for partition. Had Graphia died, Jones, as the only other joint owner, would have owned the whole by herself. But since there was no death, the joint tenants had to give testimony during the partition hearing concerning their contributions to buying the house.
Jones [v. Graphia], 95 So. 3d at 753-54 (¶¶7-8) [(Miss. App. 2012)] (emphasis added) (footnote and citations omitted). Appropriately, the court in Jones ruled that upon the death of one joint tenant, the right of survivorship automatically transfers the whole property to the surviving joint tenant.
¶8. Joshua, in an attempt to distinguish Jones, argues that “[i]f Jones enjoyed ownership of the whole prior to the proceeding and lost this enjoyment when Graphia filed, then her death afterward would be at a time after she lost this enjoyment.” We disagree. The filing of Brenda’s complaint had no effect on the status of the property as a joint tenancy. At that point, no rights had been lost, but became merely subject to loss depending on the trial and the chancellor’s ultimate ruling. If Joshua’s analysis were the rule of law, all a party would have to do is file a complaint to partite to convert the property from a joint tenancy to a tenancy in common and defeat the right of survivorship, effectively rendering the court’s ultimate disposition of the case futile.
¶9. Although merely persuasive, the Michigan Supreme Court addressed this very issue in Jackson v. Estate of Green, 771 N.W.2d 675, 677 (Mich. 2009), as follows:
A party can sever a joint tenancy by compelling a partition. Until an order of partition has been entered, however, a partition has not been compelled and, thus, the joint tenancy has not been severed. See Anno: What acts by one or more of joint tenants will sever or terminate the tenancy . . . (explaining that “[i]t is not the filing of the partition action which terminates the joint tenancy, but only the judgment in such action which has that effect”).
Indeed, the universal rule in the United States is that a pending suit for partition does not survive the death of one of the joint tenants. See Heintz v. Hudkins, 824 S.W.2d 139, 142-143 (Mo. [Ct.] App. 1992), and cases cited therein. This rule is based on two related concepts: First, the theory of survivorship—that at the moment of death, ownership vests exclusively in the surviving joint tenant or tenants—and second, the doctrine that severance of the joint tenancy does not occur until the partition suit reaches final judgment.
For clarity, at the time that Brenda filed her complaint, the joint tenancy was still intact, and when she died, the property automatically transferred to Richard through the right of survivorship. There had been no final order issued at the time of her death, so the tenancy was never severed.
Nothing earth-shaking here. Filing a partition suit will not convert joint tenancy to tenancy in common, but a partition judgment will.
August 15, 2017 § 4 Comments
We’ve all seen literally hundreds of divorce agreements that include language that goes something like this:
Husband shall have exclusive use, occupancy and possession of the former marital residence, and he shall be solely responsible to pay in due course and keep current the mortgage debt, taxes, hazard insurance, and maintenance expenses of the property, and to indemnify Wife and hold her harmless therefor. The former marital residence shall be sold not later than one year from the date of this agreement, and the proceeds shall be divided equally between the parties, after the expenses of sale are paid. If the property has not been sold to a willing and able purchaser within the time stated …
Let’s stop right there. Most marital residences nowadays are in joint tenancy with right of survivorship (JTWROS). If one tenant predeceases the other, the survivor owns the property outright. So, in the example above, if Husband predeceases Wife before the property is sold, what is supposed to be done?
Does Wife own it outright, with no claim by Husband’s estate to any part of the equity? I think Wife would have a good argument that this is the result that they intended because they both well knew how survivorship operates, and the absence of any language to the contrary connotes their intent to follow its usual operation.
Or is Wife obligated to sell and pay Husband’s estate his share of the equity? Husband’s estate would argue the clear intent of the parties to divide the equity, and that Wife would be unjustly enriched by an opposite result.
The agreement doesn’t tell us what to do. What will happen is that someone will file suit, discovery will be had, a trial will ensue, and an appeal may be taken, and after several years and a basketful of money, the matter will be decided by others rather than the original parties.
It seems to me that this could be avoided one of two ways:
One, language could be added to address specifically the eventuality of survivorship.
Two, and in my opinion better, the parties could agree to re-convey the property to themselves as cotenants.
Whatever solution you choose, this is another among many examples of how a little thought and effort can save your clients from an unanticipated and unwanted eventuality.
Note that this applies only to JTWROS. If the parties own the property as tenants by the entirety (which is becoming more prevalent among professionals, due to the shelter it provides against judgment creditors), divorce converts it to tenancy in common.
As you can see from the comments, my statement above that tenancy by the entirety is converted by divorce to tenancy in common is incorrect. The MSSC in 1976 held that divorce converts entirety to joint tenancy with right of survivorship. Shepherd v. Shepherd, 336 So.2d 497, 499 (Miss. 1976). Mississippi is one of the only states that so holds; imagine that.
Thanks to the commenters and Attorney Leonard Cobb.