Concurrent Ownership

Parts IV and V described ownership divided across time. An estate in fee simple, a life estate, a reversion, a remainder — each answers the question when a person is entitled to possession. Part VI turns to a different axis of division. Two or more persons may be entitled to possession of the same thing at the same moment, each holding a share that is undivided in the sense that it corresponds to no identifiable portion of the land. This is concurrent ownership. It is not a distinct estate; it is a manner of holding an estate. A fee simple absolute, a life estate, a term of years, or a remainder may each be held concurrently, and the rules developed in this chapter apply to the concurrent holding of any of them. Chapter 16 establishes the general framework. Chapters 17 through 20 analyze the individual forms — joint tenancy, tenancy by the entirety, community property, and partition with the rights among co-owners — each in the detail the doctrine requires.

1. Concurrent ownership is the simultaneous holding of a single estate by two or more persons, each entitled to possession of the whole. Restatement (First) of Property §§ 178–194. It divides ownership among persons rather than across time, and it is superimposed on an estate rather than being an estate in itself.
2. Unity of possession is the single indispensable characteristic of every concurrent estate. Each cotenant holds an undivided interest in the entire parcel and may occupy every part of it; no cotenant owns any identifiable portion. The remaining unities — time, title, and interest — distinguish the several forms and are developed in Chapter 17.
3. The fractional share measures value and contribution, not physical extent. A cotenant holding a one-tenth share possesses the whole equally with a cotenant holding nine-tenths; the fraction governs the division of proceeds, the allocation of expenses, and the shares awarded on partition.
4. Modern American law presumes a tenancy in common. The common law's preference for joint tenancy was reversed by statute in nearly every American jurisdiction; a conveyance to two or more persons creates a tenancy in common unless the instrument or a statutory exception clearly establishes survivorship.
5. Each cotenant may possess and use the whole without liability to the others for the reasonable value of that use. Sole occupancy by one cotenant, without exclusion of the others, does not by itself create a duty to pay rent. Liability arises only on ouster, on an agreement to pay, or under a statute imposing an accounting duty.
6. A cotenant who receives rents or profits from third parties must account to the others in proportion to their shares. The duty extends to net receipts after reasonable expenses of collection, management, and preservation, and it reaches proceeds from the depletion of the corpus, such as timber, minerals, and oil and gas.
7. Contribution is available for necessary carrying charges but generally not for improvements. Taxes, insurance, mortgage installments, and necessary repairs are chargeable ratably; voluntary improvements are not, though the improver is customarily protected on partition through owelty or an allocation reflecting the enhanced value attributable to the improvement.
8. Ouster converts permissive concurrent possession into wrongful exclusive possession. It requires an unequivocal act denying the cotenants' right of entry and communicated to them, and it is the event that both triggers liability for the reasonable rental value of occupancy and starts the running of the statute of limitations for adverse possession between cotenants.
9. Cotenants are not general fiduciaries, but they are subject to a duty of fair dealing with respect to the common title. A cotenant who acquires an outstanding title, tax deed, or encumbrance affecting the common property is ordinarily treated as having acquired it for the benefit of all, subject to reimbursement of the acquisition cost.
10. Cotenancy is distinct from co-trusteeship, from partnership, and from the marital regimes. Trustees hold title jointly and act under fiduciary duty for beneficiaries; partners hold under an entity or aggregate theory governed by partnership law; community property arises from marital status rather than from the form of the conveyance. Each interacts with cotenancy without being an instance of it.
11. Partition is the structural remedy that ends the relationship. Every cotenant in common or in joint tenancy has an unwaivable right, subject only to reasonable contractual restraint, to compel division in kind or sale. Chapter 20 develops the remedy, including the reforms of the Uniform Partition of Heirs Property Act.

• Define concurrent ownership and distinguish it from successive ownership and from divided ownership of physically separate parcels.
• Trace the historical development of concurrent estates from coparcenary and the common-law preference for joint tenancy to the modern statutory presumption of tenancy in common.
• State the content of unity of possession and explain why it alone is indispensable to every concurrent estate.
• Explain the meaning of an undivided fractional share and the consequences of unequal shares for possession, expense, and distribution.
• Identify the modes by which concurrent estates are created and the construction rules applied to ambiguous granting language.
• Apply the rules governing possession, occupancy by one cotenant, and receipt of rents and profits from third parties.
• Analyze accounting, contribution, improvements, and waste as between cotenants, and identify where the rules diverge from those governing life tenants and remaindermen.
• Determine when ouster has occurred and state its consequences for liability and for adverse possession among cotenants.
• Relate concurrent ownership to trusts, to marital property regimes, and to partition, and identify the boundaries of each.
• Evaluate modern statutory developments affecting cotenancy, including heirs-property legislation, transfer-on-death instruments, and recording consequences.
• Correct the recurring misconceptions that cotenants own physical portions, that a cotenant in possession owes rent, and that a cotenant may exclude another from any part of the land.

• Restatement (First) of Property §§ 178–194 (1936).
• Uniform Partition of Heirs Property Act §§ 1–17 (Unif. Law Comm'n 2010).
• Uniform Real Property Transfer on Death Act §§ 1–19 (Unif. Law Comm'n 2009).
• Statute of Anne, 4 & 5 Anne, c. 16, § 27 (1705) (action of account between cotenants).
• Partition Act, 31 & 32 Vict., c. 40 (1868) (Eng.).
• State cotenancy, accounting, contribution, and partition statutes.

• 2 William Blackstone, Commentaries on the Laws of England *179–*199 (1766).
• Edward Coke, The First Part of the Institutes of the Laws of England §§ 280–318 (1628).
• 4 James Kent, Commentaries on American Law *357–*373 (1830).
• Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward I, vol. 2, at 274–284 (2d ed. 1898).
• A. W. B. Simpson, A History of the Land Law 55–80 (2d ed. 1986).
• Roger A. Cunningham, William B. Stoebuck & Dale A. Whitman, The Law of Property §§ 5.1–5.13 (3d ed. 2000).
• 7 Richard R. Powell, Powell on Real Property §§ 50.01–52.05 (Michael Allan Wolf ed., 2023).
• 2 Herbert T. Tiffany, The Law of Real Property §§ 417–460 (3d ed. 1939 & Supp.).
• Evelyn Alicia Lewis, Struggling with Quicksand: The Ins and Outs of Cotenant Possession Value Liability, 1994 Wis. L. Rev. 331.
• Thomas W. Mitchell, Reforming Property Law to Address Devastating Land Loss, 66 Ala. L. Rev. 1 (2014).
• Jesse Dukeminier, James E. Krier, Gregory S. Alexander, Michael H. Schill & Lior Jacob Strahilevitz, Property 317–366 (10th ed. 2022).

Concurrent ownership exists when two or more persons hold interests in the same estate in the same thing at the same time, each with a present right to possess the whole. The definition contains three elements, and each excludes something that is frequently confused with cotenancy. The interests must be in the same estate: a life tenant and a remainderman hold interests in the same land, but in different estates, and their relationship is successive rather than concurrent. The interests must be in the same thing: two neighbors who own adjoining parcels are not cotenants, however small the parcels, because each owns a physically identified portion. And each interest must carry a present right to possess the whole: a person entitled to possession only after another's death holds a future interest, not a concurrent one.

Restatement (First) of Property §§ 178–194 treats concurrent ownership as a relation among owners rather than as a species of estate. That classification is doctrinally important. Concurrency is not a fourth category to be placed alongside the fee simple, the life estate, and the term of years; it is a manner in which any of those may be held. A fee simple absolute may be held in common by four persons. A life estate may be held jointly by two. A leasehold may be held by three tenants in common of the term. A contingent remainder may be held by a class whose members, when the class closes, will hold it concurrently. Every rule developed in Parts IV and V therefore remains applicable; this chapter adds the rules that govern the relation of the concurrent holders to one another.

The common law recognized four concurrent estates: joint tenancy, tenancy in common, tenancy by the entirety, and coparcenary. Three survive in American law, coparcenary having been absorbed into tenancy in common when the rules of primogeniture were abandoned. Community property, developed in the civil-law tradition and received in a minority of American states, is a distinct system of marital ownership rather than a common-law concurrent estate, though it shares the essential attribute of simultaneous entitlement. Chapters 17 through 19 develop these forms individually.

The characteristic vocabulary of cotenancy is that each cotenant holds an “undivided” share. The word carries a precise meaning: the share is not attached to any identifiable portion of the property. A tenant in common of a one-quarter interest in a hundred-acre farm does not own twenty-five acres. He owns a one-quarter interest in each square foot of the hundred acres, and he is entitled to walk, cultivate, and occupy the whole of it. Only partition can convert an undivided share into a divided one, and until partition occurs the fraction states a proportion of value rather than a delineation of space.

This distinction governs a series of otherwise puzzling results. A cotenant cannot convey a specified acre of the common land free of the others' interests, because he owns no specified acre; a purported conveyance of a portion by metes and bounds is generally held to pass the grantor's undivided interest in that portion, effective against the other cotenants only insofar as the eventual partition permits. A cotenant cannot exclude another from any part of the land, because every part belongs to both. A judgment creditor of one cotenant reaches that cotenant's undivided fractional share, not a physical piece of the property, and the purchaser at the execution sale becomes a cotenant with the others.

The medieval common law encountered concurrent ownership principally through inheritance. When a tenant died leaving daughters and no son, primogeniture had no application among them, and the daughters took together as parceners, or coparceners — a form combining features of joint tenancy and tenancy in common, and unique in that it arose by operation of law rather than by act of the parties. Coparceners could compel partition, and the writ de partitione facienda was among the earliest remedies available without agreement. When primogeniture and the canons of descent were abolished in the American states and later in England, coparcenary lost its occasion and was assimilated to tenancy in common.

Joint tenancy, by contrast, arose from grant, and the common law favored it. Blackstone records the preference candidly: the feudal system preferred a single undivided tenancy because it kept the services owed to the lord entire and avoided the fragmentation of holdings across generations. A conveyance to two or more persons, without more, created a joint tenancy with its incident of survivorship, so long as the four unities were present. Equity took the opposite view. Chancery regarded survivorship as an arbitrary allocation of the entire property to the accident of longevity, and it construed conveyances in favor of tenancy in common wherever the circumstances suggested that the parties intended distinct shares — notably in purchases with unequal contributions, in mortgages, and in partnership acquisitions.

The American statutory reversal followed the equitable view. Beginning in the late eighteenth century and effectively universal by the mid-nineteenth, state statutes provided that a grant or devise to two or more persons creates a tenancy in common unless survivorship is expressly declared. The Statute of Anne, 4 & 5 Anne, c. 16, § 27 (1705), had already supplied an action of account between cotenants, remedying the earlier absence of any means by which one cotenant could compel another to share receipts. Together these two developments — the presumption of tenancy in common and the accounting remedy — define the modern law: shares are presumptively distinct and transferable, and the relation among cotenants is regulated rather than merely tolerated.

Parts IV and V analyzed successive ownership: the present estate and the future interest, each entitled to possession at a different time. The distinction from concurrent ownership is not merely descriptive; it determines which body of rules applies. A life tenant and a remainderman are governed by the law of waste, which restrains the possessor for the benefit of a person not yet entitled to possess. Cotenants are governed by the law of accounting and contribution, which allocates burdens and benefits among persons who are all entitled to possess now. The two bodies of doctrine reach different results on the same facts. A life tenant who exhausts a mineral deposit commits waste; a cotenant who does so must account for the proceeds but does not, in most jurisdictions, commit waste in the technical sense.

The two axes frequently intersect. A grant “to A for life, then to B and C” creates a life estate in A and a remainder held concurrently by B and C. A grant “to A and B for their joint lives, then to C” creates a concurrently held life estate followed by a remainder. When both dimensions are present, the analysis proceeds in sequence: identify the estates and their order in time, then determine how each estate is held among its owners. Chapter 12's classification of future interests is unaffected by the fact that the interest is held by more than one person.

Unity of possession means that each cotenant has the right to possess and enjoy the entire property, and that no cotenant has a superior right to any part of it. It is the one unity common to every concurrent estate. A tenancy in common may exist though the cotenants acquired their interests at different times, under different instruments, and in unequal fractions; it cannot exist without unity of possession, for the absence of that unity would mean that each owner held a distinct parcel and the relation would not be concurrent at all.

Three consequences follow directly. First, each cotenant may enter upon and use every part of the land, subject only to the equal right of the others; use that does not exclude the others is lawful however extensive. Second, no cotenant may lawfully exclude another, and an attempt to do so is the ouster analyzed in Part VI. Third, a cotenant in possession is not a trespasser as against the others, and an action in ejectment between cotenants requires proof of ouster rather than merely proof of possession.

Unity of possession also explains the limits on what a single cotenant may do with respect to third parties. A cotenant may lease his undivided interest, and the lessee becomes a cotenant in possession for the term with the same rights and limitations as the lessor; but a cotenant cannot grant a lessee the exclusive possession of the whole, because he has no exclusive possession to convey. A cotenant may grant an easement across the land, but the grant binds only his own interest and is ineffective against the others unless they join or ratify.

The classical scheme required four unities for a joint tenancy: possession, interest, title, and time. Unity of interest requires that the joint tenants hold identical shares of the same estate and duration. Unity of title requires that they take by the same instrument. Unity of time requires that their interests vest at the same moment. Tenancy in common requires possession alone. Tenancy by the entirety, in jurisdictions retaining it, requires the four unities and a fifth — unity of marriage — and is confined to spouses.

This chapter states the framework common to all four. It does not resolve the questions peculiar to each — how a joint tenancy is severed, whether a tenancy by the entirety is reachable by the creditors of one spouse, how community property is characterized at acquisition and divided at dissolution. Those questions occupy Chapters 17 through 19, and they are properly reserved: each rests on a distinct historical foundation and a distinct body of modern statutory law.

Concurrent estates arise in four principal ways. By conveyance: a grantor transfers to two or more grantees, or transfers to himself and another, the latter being effective at common law only through a straw conveyance but permitted directly by statute in most states today. By devise: a testator gives to two or more devisees. By intestate succession: the statute of descent and distribution vests the estate in the heirs, who take as tenants in common. And by operation of law in specialized contexts: partnership acquisitions, judicial sales to multiple purchasers, and the vesting of a class gift when the class closes with more than one member.

The instrument's language determines the form. Because the modern presumption favors tenancy in common, the drafter who intends survivorship must say so, and the safest formula recites both the form and its incident: “to A and B as joint tenants with right of survivorship and not as tenants in common.” Language reciting survivorship without naming the form is generally given effect according to its substance, either as a joint tenancy or, in some jurisdictions, as a tenancy in common with an indestructible executory interest in the survivor. Language naming the form without reciting survivorship is usually sufficient where the statute permits, but is a needless invitation to litigation.

Tenants in common may hold unequal shares, and the instrument may fix them in any proportion. Where the instrument is silent, the presumption is of equal shares, but the presumption yields to proof of unequal contribution to the purchase price, particularly where the cotenants are not related and no gift was intended. In that circumstance many courts either find a tenancy in common in proportion to contribution or impose a resulting trust to the same effect.

Joint tenants, by contrast, must hold equal shares, because unity of interest requires it. An attempt to create a joint tenancy in unequal fractions fails as a joint tenancy and takes effect as a tenancy in common in the stated fractions. Where a joint tenancy is severed as to one of three joint tenants, the severing tenant becomes a tenant in common as to his one-third and the remaining two continue as joint tenants inter se of the other two-thirds — a result that follows from the unities rather than from any independent policy, and one developed further in Chapter 17.

Unequal shares affect distribution but not possession. A cotenant holding one-twentieth may occupy the entire property; on sale he receives one-twentieth of the net proceeds; he bears one-twentieth of the taxes and necessary repairs, and may recover the excess from the others by contribution. The proposition that possession and proportion are independent is counterintuitive to most first readers and is the source of the misconceptions catalogued in Part IX.

Each cotenant is entitled to possess and use the whole of the common property. The right is equal, not exclusive, and it is limited only by the corresponding right of the others. A cotenant may farm the land, reside in the dwelling, store goods, and admit invitees. He may not destroy the property, exclude a cotenant, or appropriate the corpus without accounting. Between these limits, the law leaves cotenants to arrange their affairs, and it is a persistent feature of the doctrine that concurrent possession is easier to state than to practice: two persons entitled to occupy the same house are frequently able to do so only by agreement or not at all.

The law's answer to that practical difficulty is not to allocate occupancy but to make the relationship terminable. Because any cotenant may compel partition, the law tolerates an arrangement that is unstable in fact, on the footing that the party who cannot endure it has a remedy. That structural point explains the reluctance of courts to fashion elaborate rules of shared use, and it explains why the substantive rules that do exist concentrate on money — accounting, contribution, and the value of occupancy — rather than on the physical management of the property.

The general American rule is that a cotenant in sole possession owes nothing to the cotenants out of possession for the value of that use. The rule follows from unity of possession: the occupying cotenant exercises his own right, and the others, having the same right, cannot complain of a use that does not exclude them. Their remedy, if they wish to occupy, is to enter; if they wish to be paid, to seek partition; if they have been excluded, to prove ouster.

A substantial minority of jurisdictions and several statutes modify the rule, imposing liability for the reasonable rental value of occupancy where the occupying cotenant has had the exclusive benefit of the property over a substantial period, or where the occupier seeks contribution for expenses. The latter qualification is nearly universal even in jurisdictions following the general rule: a cotenant who demands contribution for taxes, insurance, or mortgage payments will ordinarily be charged with the reasonable value of his occupancy as an offset, on the principle that he may not claim the burdens of ownership ratably while retaining its benefits entirely.

A cotenant who receives rents or other profits from third parties must account to the others for their proportionate shares. The duty derives from the Statute of Anne and is now generally statutory. It extends to net receipts: the collecting cotenant may deduct reasonable expenses of collection, management, taxes, insurance, and necessary repairs before distributing the balance. He may not deduct the value of his own services beyond a reasonable management allowance where one is customary, and he may not deduct expenditures for improvements.

Receipts from the depletion of the property itself present a distinct question. Timber cut and sold, minerals extracted, oil and gas produced — each converts a portion of the corpus into money. The prevailing rule requires the extracting cotenant to account to the others for their shares of the net proceeds, computed after deduction of the reasonable costs of production. A minority of jurisdictions, principally in oil and gas states, permit the non-consenting cotenant to recover only after the producing cotenant has recouped development costs, on the reasoning that the producer bore the risk of a dry hole. In either case the extracting cotenant is not liable for waste to the others in the sense applicable to a life tenant, though he may be enjoined from extraction that threatens the property's value as a whole.

Accounting is the general remedy by which the financial relations of cotenants are adjusted. Historically the action of account lay only between persons standing in a relation of agency or bailiffship; the Statute of Anne extended it to cotenants who received more than their just shares. Modern practice conducts the accounting either as an independent equitable action or, far more commonly, as an incident of a partition suit, in which the court determines the parties' shares, adjusts the equities among them, and directs distribution accordingly.

The accounting reaches, on the credit side, rents and profits received from third parties, proceeds of depletion, condemnation awards, and insurance proceeds; and, on the debit side, taxes, assessments, insurance premiums, interest and principal on encumbrances, necessary repairs, and the reasonable expenses of management. Improvements occupy an intermediate position described in the next section. Occupancy value enters as described in § 16.10. The court is not confined to a mechanical ledger; the accounting is equitable, and courts routinely adjust for the parties' conduct, delay, and relative benefit.

A cotenant who pays more than his proportionate share of a necessary carrying charge may compel contribution from the others. Taxes and assessments are the paradigm: they are compulsory, they preserve the common title against forfeiture, and every cotenant benefits from their payment. Insurance premiums and interest and principal payments on a mortgage encumbering the whole are treated the same way, as are necessary repairs of the kind required to prevent deterioration.

Two limits recur. First, the payment must be necessary rather than voluntary in the sense of discretionary; a cotenant who pays an obligation that binds only his own share, or who assumes an expense the others neither authorized nor benefited from, has no claim. Second, the claimant is subject to the occupancy offset: a cotenant in sole possession who seeks contribution for taxes will ordinarily be met with a charge for the reasonable rental value of his use, and where that value equals or exceeds the carrying charges the contribution claim fails entirely. Some jurisdictions require the claimant to have made a demand before payment, at least where contribution is sought as an independent action rather than in partition.

Contribution may be enforced personally against the other cotenants, and in most jurisdictions the paying cotenant also acquires an equitable lien on the shares of the others for the amounts advanced, enforceable in the partition proceeding. Where the payment discharged a tax lien or redeemed from a tax sale, subrogation to the lien discharged is frequently available and gives the payer priority over intervening encumbrances on the other shares.

Improvements are treated differently from carrying charges because they are voluntary and because their value is contestable. A cotenant who builds a barn, adds a wing to the dwelling, or installs an irrigation system without the others' consent cannot compel contribution to the cost. The rule protects cotenants from being charged for expenditures they neither authorized nor wanted, and it reflects the reality that a cotenant of modest means may be unable to pay for an improvement chosen by a wealthier co-owner.

The improver is nonetheless protected on partition, and the protection is generous. Where the property is divided in kind, the court will if practicable allot to the improver the portion containing the improvement, adjusting the shares by owelty if the allotment exceeds his fraction. Where the property is sold, the improver receives from the proceeds not the cost of the improvement but the amount by which the improvement enhanced the sale value — a measure that may be greater or less than cost, and that places the risk of an ill-judged improvement on the improver. The distinction between cost and enhanced value is the single most litigated point in this area and should be stated precisely in any pleading seeking an improvement allowance.

The doctrine of waste developed to protect a future interest against the possessor of a present estate, and it fits the cotenancy relation imperfectly. All cotenants are presently entitled; none holds a future interest to be protected. Nonetheless most jurisdictions recognize an action for waste between cotenants, either by statute descending from the Statute of Westminster II or by the equitable jurisdiction to enjoin destruction of common property. The action reaches conduct that permanently impairs the value of the property beyond the actor's own share — demolition of structures, destructive extraction, or neglect resulting in deterioration.

The measure of recovery reflects the difference. A life tenant committing waste is liable for the entire injury to the inheritance; a cotenant is liable to each complaining cotenant for that cotenant's proportionate share of the injury, for the actor's own share of the loss falls on himself. Ordinary and reasonable use, including the taking of the customary annual yield of a farm or woodlot, is not waste. Extraction that exhausts the corpus is generally addressed through the accounting duty of § 16.11 rather than through waste, and the two remedies are alternative rather than cumulative.

Cotenants are not fiduciaries in the full sense applicable to trustees. They owe no duty of loyalty in their general affairs, may deal with one another at arm's length, and may compete for the purchase of one another's shares. With respect to the common title, however, a duty of fair dealing is imposed, and it is enforced strictly. A cotenant who acquires an outstanding adverse title, a tax deed on the common property, or a mortgage in foreclosure is ordinarily held to have acquired the interest for the benefit of all cotenants who elect, within a reasonable time, to contribute their proportionate shares of the acquisition cost.

The rule rests on the shared origin of the cotenants' title and the confidence implicit in a relation of common ownership, and it applies with particular force where the cotenancy arose by inheritance among family members. It applies with less force, and in some jurisdictions not at all, where the cotenants acquired their interests independently and at different times, or where the cotenant who acquires the outstanding title had no advantage of position in doing so. Where the rule applies, the electing cotenants must act promptly; a cotenant who stands by while the acquirer bears the risk and expense may be barred by laches.

Ouster is the wrongful exclusion of a cotenant from possession of the common property by another cotenant. Because concurrent possession is lawful, mere occupancy — however long, however exclusive in fact — is not ouster. What is required is an act denying the excluded cotenant's right, unequivocal in character and brought home to him. Refusing a demand for entry, changing the locks, denying the cotenant's title in response to inquiry, recording a deed purporting to convey the entire fee, and collecting all rents while asserting sole ownership are the recurring instances.

Two consequences follow. The ousted cotenant may bring ejectment to recover possession, and may recover the reasonable rental value of the property for the period of exclusion, proportioned to his share. And the statute of limitations begins to run in favor of the ousting cotenant, so that continued exclusive possession for the statutory period may ripen into title by adverse possession against the cotenants excluded.

Chapter 7 established the elements of adverse possession: actual, open and notorious, exclusive, hostile, and continuous possession for the statutory period. Between cotenants the element of hostility is transformed. Possession by a cotenant is presumed to be permissive and consistent with the common title, and the presumption is not overcome by ordinary acts of ownership. The claimant must prove an ouster or its equivalent — conduct so unequivocally adverse that the excluded cotenants must be taken to have had notice that their title was repudiated.

Courts have identified several patterns sufficient to satisfy the requirement: a recorded conveyance of the entire fee by one cotenant to a stranger, followed by the grantee's exclusive possession; an unqualified denial of the cotenants' title communicated to them; a partition or quiet-title decree obtained without joining the omitted cotenants and followed by open exclusive possession; and, in some jurisdictions, exclusive possession for an extended period accompanied by payment of all taxes, exclusion of the others from the receipts, and no acknowledgment of their interest. The requirement of notice is the governing consideration: the doctrine will not divest a cotenant of title on the strength of conduct he had no reason to regard as adverse.

Co-trustees hold legal title concurrently, ordinarily as joint tenants with survivorship so that the office continues without interruption on the death of one. The resemblance to cotenancy is formal only. Co-trustees hold not for themselves but for beneficiaries, are subject to the full fiduciary duties of loyalty and prudence, must act unanimously or as the instrument directs, and may not partition. Nothing in the law of accounting or contribution among cotenants applies to them; their financial relations are governed by trust law.

Beneficiaries of a trust are likewise not cotenants of the trust property. Their interests are equitable and are held against the trustee rather than in the res, and a beneficiary cannot compel partition of trust assets or demand possession. The distinction matters in practice because a family arrangement that appears to create cotenancy — title in several relatives with an understanding that one manages for all — may be characterized either as a cotenancy with a duty of accounting or as a trust with the full fiduciary consequences, and the characterization determines the standard of conduct, the limitation period, and the available remedies.

Cotenancy and trust intersect most often through the resulting and constructive trust. Where two persons contribute unequally to a purchase and title is taken in one name, a resulting trust may give the contributor an equitable interest; where a cotenant acquires an outstanding title in breach of the duty of fair dealing described in § 16.16, a constructive trust is the usual remedial vehicle. In each instance the trust supplies the remedy and cotenancy supplies the underlying relation.

Marital ownership is concurrent ownership, but it is not merely an application of the rules stated in this chapter. In common-law states the marital form is the tenancy by the entirety, which superimposes on the four unities a fifth unity of marriage and, in consequence, an indestructibility that no ordinary cotenancy possesses: neither spouse may sever, convey, or encumber the estate acting alone, and in many jurisdictions the interest of one spouse is beyond the reach of that spouse's individual creditors. In community-property states the marital form arises from status rather than from the instrument, characterizing property by the time and manner of its acquisition rather than by the words of the deed.

Spouses may also hold as ordinary tenants in common or joint tenants, and frequently do — with respect to property acquired before marriage, property acquired by gift or inheritance, and property deliberately titled to avoid the entirety form. The rules of this chapter govern such holdings without modification, subject to the overlay of family law on dissolution. The practitioner's first question in any marital-property matter is therefore one of characterization: which form does this asset take, and under which state's law was it acquired. Chapters 18 and 19 develop the two marital systems.

Partition is the remedy that terminates concurrent ownership by converting undivided shares into divided ones, either physically by partition in kind or economically by partition by sale and distribution of the proceeds. Every tenant in common and every joint tenant has the right to compel it, without showing cause and without the consent of the others. The right is regarded as an incident of the ownership itself, and a total and perpetual restraint on partition is void; reasonable contractual limitations, limited in time and purpose, are generally enforced.

Partition is also the procedural setting in which most of the substantive rules of this chapter are actually applied. Accounting, contribution, occupancy offsets, improvement allowances, tax and lien adjustments, and the resolution of competing claims to the shares are all commonly determined in the partition action, because the court that divides the property is best situated to adjust the equities among those who owned it. Chapter 20 develops the remedy in full: the preference for partition in kind, the standards governing sale, owelty, the treatment of liens and life estates, and the procedural protections introduced by the Uniform Partition of Heirs Property Act.

Four statutory developments have altered the practical operation of cotenancy in the last half century. The first is heirs-property legislation. The Uniform Partition of Heirs Property Act (2010), adopted in a substantial and growing number of states, applies where cotenants acquired their interests by inheritance and no agreement governs partition. It requires appraisal, gives the non-petitioning cotenants a right to buy out the petitioner at the appraised value, and directs a preference for partition in kind, with open-market sale rather than auction where sale is necessary.

The second is the transfer-on-death instrument. The Uniform Real Property Transfer on Death Act (2009) and comparable state statutes allow an owner to designate a beneficiary who takes at death without probate and without any present interest during the owner's life. Because the instrument is revocable and creates no present cotenancy, it accomplishes the principal nonprobate objective for which joint tenancy was historically used, without the loss of control and the creditor exposure that joint tenancy entails.

The third is the statutory modification of the accounting and occupancy rules. Several jurisdictions have codified liability for the reasonable rental value of exclusive occupancy, others have codified the contribution right and the accompanying lien, and many have replaced the historical action of account with a general equitable accounting incident to partition. The practitioner must consult the local statute before applying any of the general rules stated in Parts IV and V.

The fourth is the elaboration of cotenancy within statutory forms of common ownership. Condominium and common-interest-community legislation superimposes on undivided ownership of the common elements a governing structure of association, assessment, and bylaw that displaces most of the ordinary cotenancy rules. Chapter 35 of the Second Edition treats common-interest communities as a distinct institution; the point here is simply that a person holding an undivided share of common elements is not governed by the accounting and partition rules of this chapter.

Because each undivided share is separately transferable, separately encumberable, and separately reachable by creditors, cotenancy multiplies the entries in the chain of title. A title examiner must trace each share independently from the moment of division: a deed of a one-third interest, a judgment lien against one cotenant, a mortgage of a single share, a tax sale of the whole, and a devise of a fractional interest all appear in the same chain and affect different portions of the ownership.

Two recurring problems deserve mention. First, a conveyance by one cotenant purporting to describe a portion of the land by metes and bounds creates an interpretive difficulty resolved only on partition, and it should be avoided in drafting. Second, survivorship interests may fail of record: the death of a joint tenant terminates his interest by operation of law, but the record does not reflect it until an affidavit of death or comparable instrument is filed, and a title chain showing joint tenants long since deceased is a common defect in practice. Chapters 28 through 30 address recording, chain of title, and title assurance; the cotenancy-specific point is that fractional ownership demands fractional examination.

Three drafting practices resolve most cotenancy disputes before they arise. State the form and the incident expressly, naming the estate and reciting whether survivorship is intended. State the fractional shares numerically where they are unequal, and recite the reason if it reflects contribution, so that a later court is not required to reconstruct it. And where the cotenants intend a continuing arrangement — a family cabin, an investment parcel, a jointly held business property — reduce the arrangement to a written cotenancy agreement addressing occupancy, expenses, improvements, transfer, and the circumstances in which partition may be sought.

Counseling should identify at the outset which body of law will govern. A married couple in a community-property state cannot title their way out of the community characterization of earnings-derived acquisitions merely by taking as joint tenants. A family holding inherited land in a heirs-property jurisdiction is subject to the Uniform Act's buyout and appraisal procedures whether or not the parties know it. And a client who wishes to avoid probate should be advised that a transfer-on-death deed generally accomplishes the objective with fewer collateral consequences than a joint tenancy conveyance, which surrenders control immediately and exposes the property to the joint tenant's creditors.

Concurrent ownership divides ownership among persons rather than across time. Its essential attribute is unity of possession: each cotenant holds an undivided share entitling him to possess the whole, and no cotenant owns any identifiable portion. The common law preferred joint tenancy; American statutes reversed the preference, and a conveyance to two or more persons now creates a tenancy in common unless survivorship is clearly expressed. Shares may be equal or unequal, and the fraction governs money rather than space.

The relation among cotenants is regulated principally through financial adjustment. A cotenant in sole possession generally owes nothing for his use, but must account for rents and profits received from third parties and for the proceeds of depletion. He may compel contribution for taxes, insurance, encumbrance payments, and necessary repairs, subject to an offset for the value of his occupancy, but not for improvements, which are compensated on partition by their enhancement of value rather than their cost. Waste lies between cotenants in modified form, and a duty of fair dealing prevents one cotenant from acquiring an outstanding title against the others. Ouster is the pivot of the doctrine: it converts lawful concurrent possession into wrongful exclusion, creates liability for rental value, and starts the limitation period for adverse possession among cotenants.

This chapter has stated the framework common to every concurrent estate. The forms themselves now require individual treatment. Chapter 17 examines joint tenancy — the four unities, the creation and destruction of survivorship, the modern law of severance, and the consequences of joint tenancy for creditors, probate, and taxation. Chapter 18 takes up tenancy by the entirety and the protective incidents that distinguish it. Chapter 19 develops community property as a distinct system of marital ownership. Chapter 20 completes Part VI with partition, contribution, and the rights among co-owners, including the reforms of the Uniform Partition of Heirs Property Act.

• Restatement (First) of Property §§ 178–194 (1936).
• Uniform Partition of Heirs Property Act (Unif. Law Comm'n 2010).
• Uniform Real Property Transfer on Death Act (Unif. Law Comm'n 2009).
• 2 William Blackstone, Commentaries on the Laws of England *179–*199 (1766).
• Roger A. Cunningham, William B. Stoebuck & Dale A. Whitman, The Law of Property §§ 5.1–5.13 (3d ed. 2000).
• 7 Richard R. Powell, Powell on Real Property §§ 50.01–52.05 (Michael Allan Wolf ed., 2023).
• Evelyn Alicia Lewis, Struggling with Quicksand: The Ins and Outs of Cotenant Possession Value Liability, 1994 Wis. L. Rev. 331.
• Thomas W. Mitchell, Reforming Property Law to Address Devastating Land Loss, 66 Ala. L. Rev. 1 (2014).