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Severance of a Joint Tenancy - Intro

Severance is any act that destroys one or more of the four unities required to maintain a joint tenancy. The legal consequence of severance is that the joint tenancy is converted to a tenancy in common. (For those rare joint tenancies involving three or more joint tenants, one joint tenant may sever the joint tenancy as to his interest, but the others remain joint tenants with each other.) The traditional rule for severance required either that all the tenants expressly agree to hold as tenants in common, or that one of the tenants convey to a third person in order to destroy the unities (particularly the unities of time and title), to turn a joint tenancy into a tenancy in common. In modern times, a conveyance from oneself as joint tenant to oneself as tenant in common is likely to succeed just as well as a conveyance by one tenant to a straw owner plus a reconveyance from the straw. See Hendrickson v. Minneapolis Fed. Sav. & Loan Ass’n, 161 N.W.2d 688 (Minn. 1968); Riddle v. Harmon, 162 Cal. Rptr.530 (Cal. Ct. App. 1980); see also Countrywide Funding Corp. v. Palmer, 589 So. 2d 994 (Fla. Dist. Ct. App. 1991) (one joint tenant forged the other’s signature in purported conveyance to himself; court held that his act severed the tenancy). But see Krause v. Crossley, 277 N.W.2d 242 (Neb. 1979) (rejecting this modern trend and requiring conveyance to a third party for an effective severance); L.B. 694, § 11, 1980 Neb. Laws 577 (codified as Neb. Rev. Stat. § 76-118(4) (Reissue 1996)) (reversing result in Krause and allowing self-conveyance to sever).

The largest problem in severance is one of surprise, which can occur whether or not a third party straw is required to partipate in the severance. As Helmholz explains:

Since one joint tenant has always been able to sever the tenancy without the concurrence or even the knowledge of the other, the possibility of a severance that is unfair to the other has long existed. It can take several forms, as where the joint tenant who has contributed nothing to the purchase of the assets then severs unilaterally, thereby upsetting the normal expectations of the other joint tenant. Its most extreme form is the secret severance. If the tenant who severs secretly is the first to die, the heirs or successors produce the severing document and take half of the property. It accrues to them under the tenancy in common that was the result of the severance. If the severing tenant survives, however, the severing document is suppressed and the survivor takes the whole. The heirs or successors of the first to die get nothing. It is what the economists call “strategic behavior.”

Helmholz, supra, at 25-26.
Why not impose a notice requirement for a deliberate severance? What about imposing a requirement that a severing instrument be timely recorded in the public land records? See Cal. Civ. Code § 683.2 (West 1998) (if a joint tenancy is recorded, severance is only effective against the non-severing tenant if the severance is recorded either before the severing tenant’s death or, in limited circumstances, recorded within seven days after death; the severing tenant’s right of survivorship is cut off even without recording); Minn. Stat. Ann. § 500.19--5 (West 1997) (requiring recording to make unilateral severance valid); N.Y. Real Prop. Law §240-c(2) (similar). Does a recording requirement solve the problem of surprise?

Joint tenants may also take acts that are more ambiguous with respect to their rights. Courts then have to decide what kinds of acts are sufficient to work a severance.