Have you heard the term “Joint Tenancy” before. Have you ever thought, what does it mean.
According to 1977 OK 47, 571 P. 2d 1198, A joint tenancy is created only when unities of time, title, intere4st, and possession are present; unity of time requires interest of joint tenants to vest at the same time; unity of title requires parties to take their interests by the same instrument; unity of interest requires estates of same type and duration; and unit of possession requires joint tenants to have undivided interests in the whole not undivided interest in the several parts. Equitable Life Assur. Soc. Of U.S. v. Weightman, 61 Okl. 106, 160 P. 629. See 4A Powell, Real Property § 615 ; 4 Thompson, Real Property §1777 [Grimes ed. 1961]; Reynolds, Co-Ownership of Property in Oklahoma, 27 Okl. L. Rev. 585 .
Alteration of any required unity will destroy the joint tenancy. For example, if A and B hold as joint tenants and B, with or without the permission of A, conveys to C, the joint tenancy is destroyed because unity of interest is eliminated; the result is A and C hold as tenants in common, each having an estate of a whole undivided half interest. Similarly, if A, B and C are joint tenants and C conveys to D, A and B continue as joint tenants in an undivided two-thirds of the whole estate and D has the whole of an undivided one-third as a tenant in common [571 P. 2d 1200] with A and B. See Cribbett, Principles of the Law of Property 94-7 .
Significantly, one joint tenant cannot encumber the interest of another joint tenant. Utilities Production Corp. V. Riddle, 161 Okl. 99, 16 P. 2d 1092; People v. Nogarr, 164 Cal. App. 2d 591, 330 P. 2d 585, 67 A.L.R. 2d 992. See 4 Thompson, Real Property § 1780 [Grimes ed. 1961]. Since a mortgage is a mere lien or charge upon mortgagor’s interest which does not transfer any legal title to mortgagees or entitle mortgagees to possession, it does not destroy any unity and, therefore, estate in joint tenancy is not severed and converted to tenancy in common.
In other words, joint tenancy will remain as long as everyone who is joint tenants on the deed doesn’t convey to someone who is not on the deed. The statement above is saying that someone conveys to someone else who is not on the deed, it destroys the joint tenancy because the unity of interest is gone. If that were the result then the two people who are now joint tenants will hold ½ interest of the estate. If you were to have 3 people on the joint tenancy and one person conveys their part to someone who is not on the deed then, that will not affect their share in the estate.
A joint tenancy if intact at the death of the first joint tenant to die, avoids probate. It does not avoid probate when the second joint tenant dies, unless other planning is used. For example a revocable living trust or transfer-on-death deed.
An experienced probate, living trust and elder law attorney, like Brent D. Coldiron, knows what to do for you, to make sure you don’t get yourself in a mess if you are on a joint tenancy deed. His fees are reasonable. Contact Brent at (405) 478-5655 or 737-2244. His website is www.coldironlaw.com.