Tenancy in Common

The first form of joint ownership we will consider is tenancy in common. Black’s Law Dictionary defines “tenancy in common” as:

[W]here two or more hold the same land, with interests accruing under different titles, or accruing under the same title, but at different periods, or conferred by words of limitation importing that the grantees are to take in distinct shares.^[1]

Let me explain a bit further. In essence, tenants in common are two or more owners of a piece of real property who may obtain ownership at different times, from different people, and in different ownership amounts. Unless otherwise specified, when two or more people own a piece of land, the default in Indiana is tenancy in common.

In addition, while tenants in common may own different percentages of land, if there is no other evidence or indication, “there is a presumption that their shares are equal…[t]his presumption is rebuttable, however, and extrinsic evidence, such as contribution, can be shown to refute it.”^[2]

Another important aspect of tenancy in common to consider is that the owners have no “right of survivorship.” This means that, if one co-owner dies, that owner’s percentage is transferred to the owner’s heirs, rather than to other co-owners.

Tenants in common also have certain rights as to each other and to third-party non-owners. As noted in a U.S. Supreme Court case:

Tenants in common may each unilaterally alienate their shares through sale or gift or place encumbrances upon these shares. They also have the power to pass these shares to their heirs upon death. Tenants in common have many other rights in the property, including the right to use the property, to exclude third parties from it, and to receive a portion of any income produced from it.^[3]

[1] Id.

[2] Willett v. Clark, 542 N.E.2d 1354, 1358 (Ind. Ct. App. 1989)

[3] United States v. Craft, 535 U.S. 274, 280, 122 S. Ct. 1414, 1421, 152 L. Ed. 2d 437 (2002)