Co-Ownership and Marital Property

More than one person can “own” a thing at any given time. Their rights will be
exclusive as against the world, but not exclusive as against each other. When conflicts
between them develop, or when the outside world seeks to regulate their behavior, we
need to understand the nature and limits of their rights.

In this section, we will not address the form of concurrent ownership known as
partnership, which we cover separately, though you will see some comparative
references to it in the case that follows. Nor will we address corporations (in which
ownership can be nearly infinitely divided and is separated from control; see
Corporations section). These topics are dealt with in detail in business associations and
similar courses. We will also not consider forms of concurrent ownership that are of
purely historical interest, such as coparceny¹. The main types of co-ownership we will
consider are (1) tenancy in common, (2) joint tenancy, and (3) tenancy by the entireties,
along with a brief look at (4) community property, a particular kind of co-ownership
available in some states.

In the late 1980s, a sample of real estate records showed that about two-thirds of
residential properties were held in some form of co-ownership. Evelyn Alicia Lewis,
Struggling with Quicksand: The Ins and Outs of Cotenant Possession Value Liability
and a Call for Default Rule Reform, 1994 Wis. L. Rev. 331; see also Carole Shammas
et al., Inheritance in America from Colonial Times to the Present 171-72 (1987)
(showing percentage of land held in joint tenancies rising from under 1% in 1890 to
nearly 80% in 1960, then dropping to 63% in 1980); N. William Hines, Real Property
Joint Tenancies: Law, Fact, and Fancy (51 Iowa L. Rev. 582 (1966) (finding that joint
tenancies in Iowa rose from under 1% of acquisitions in 1933 to over a third of farm
acquisitions and over half of urban acquisitions in 1964, almost exclusively by married
couples); Yale B. Griffith, Community Property in Joint Tenancy Form, 14 Stan. L.
Rev. 87 (1961) (study of California counties in 1959 and 1960 finding that married
couples held over two-thirds of property as cotenants, 85% of which was as joint
tenants).

Given that many justifications for the institution of private property rely on the idea that competing interests in property lead to inefficiency, waste, and conflict, it is perhaps surprising that so much private property is, in practice, owned by more than one person. If communal ownership is so inefficient, why do we recognize so many kinds of co-ownership?

1 A form of ownership only available to female heirs, when there were no male heirs.