In addition to sole, individual ownership, there are three primary forms of shared or joint ownership to property, both real and personal, in Massachusetts. These are Tenancy-in-Common, Joint Tenancy and Tenancy-by-the-Entirety.

Tenancy-in-Common. A tenancy-in-common is an old English common law concept which is generally applied to two or more persons not husband and wife, who are entitled to possession and use of the same property. The owners may have unequal interests or shares and may have received their interests at different times and through different means (grant, deed, inheritance, will, etc.). The key distinction between a tenancy-in- common and other types of co-ownership or shared ownership is that, upon death, each owner's interest passes to the deceased person's heirs or those named in his will. There is no right of survivorship that transfers the decedent's interest or share in the property to the other co-owners.

This right to specify who shall receive your property at your death is considered so important that, under the law, tenancy-in-common is preferred over other forms of co-ownership. If property is transferred to two or more persons and nothing is specified how the property is to be held, the law presumes it to be a tenancy-in-common.

Each common owner may enter on the common property, take possession of the whole, occupy and utilize every portion of the property at all times and in all circumstances. The rights to sue and possession, however, are not exclusive, and each common owner has the same rights. If income is derived from the property, each co-owner is entitled to his proportionate share of the income.

Each co-owner is also responsible for the proportionate share of expenses, taxes and repairs. If the expenses are paid by one co-owner, the other co-owners must reimburse him for their share or their duty to reimburse may be enforced by a lien against their interest in the property.

Each co-owner has the right to transfer or convey his interest or share in the property by selling it, giving it away or transferring it to persons of his choice at death, without the consent of the other co-owners. If tenants-in-common wish to terminate their joint ownership of the property they may voluntarily do so, by agreement, into separate ownerships. Or they may file a court action for partition in the Land Court or Superior Court. The court may either divide the property into parcels according to each owner's share, or it may sell the property and apportion the proceeds among the co-owners.

Joint Tenancy. A joint tenancy is created in the grantee clause of a deed or other conveyance by the words "¼as joint tenant with right of survivorship¼" This is sometimes abbreviated as "JTWROS." Not every deed that describes co-owners as joint tenants is sufficient to create a joint tenancy. Certain preconditions must be present or a tenancy-in-common is created by default.

Traditionally joint tenants must receive their interest at the same time and through the same document, for example, a will or a deed. Each joint tenant's interest must be equal in amount. For example if four joint tenants own property, each will have a one-fourth interest. Each joint tenant has an equal undivided interest in the whole property. And as with a tenancy-in-common, each joint tenant may enter on the common property, take possession of the whole, occupy and utilize every portion of the property at all times and in all circumstances. These rights however, are shared with the other joint tenants.

Upon the death of one of the joint tenants, the title that was held by the deceased person passes automatically to the surviving, remaining joint owners, not to the heirs of the deceased person or to the relatives or persons named in his or her will. This right of survivorship continues until the sole survivor owns all the property.

A joint tenancy may be broken by any of the joint tenants. Certain actions will break it, even against the wishes of the other join tenants, and convert it to a tenancy-in-common so that the survivorship feature will not take effect.

Tenancy-by-the-Entirety. A tenancy-by-the-entirety is a form of co-ownership that applies only to a husband and wife while they are married. It is based on the archaic common law view that husband and wife are one person for the purpose of owning property. As long as they are still married, neither the husband nor the wife separately has an interest that can be sold, mortgaged, leased or liened against. Nor can the property be divided or partitioned between them. Each spouse has an undivided interest in the whole property and the right to sole ownership when the other spouse dies.

Since a tenancy-by-the-entirety applies only to a husband and wife during a valid marriage, if they divorce, the tenancy-by-the-entirety is automatically converted into a tenancy-in-common with each person owning a one-half interest in the property.

A partial list of attorneys who are members of the MCA is listed by city/town on this web site. Return to the "Home Page" and click on "General Public". Any of the attorneys whose practice focus is Residential Real Estate Law can assist home-buyers in deciding when form of ownership (tenancy) is best for their situation.

Peter Wittenborg, Esq.
The Real Estate Bar Association for Massachusetts
50 Congress Street Suite 600
Boston, MA 02109-4075
Tel: (617) 854-7555
Fax: (617) 854-7570
E-Mail: wittenborg@massrelaw.org