PROPERTY PRENUPS: Framework

Posted by Lyndsey M. O'Connell | Jul 28, 2020 | 0 Comments

PART 2: A History Of Tenancies

Under the feudal system of England, the holdings of the courts long favored joint tenancies rather than tenancies in common. The later English decisions have leaned the other way. In this country, some of the courts' earliest decisions decided that a joint tenancy is alien to our form of government, and indulged in every possible presumption against that kind of tenure. Many of our American states, however, did not leave the matter to the courts. Statutes were enacted expressly favoring tenancies in common as contrasted with joint tenancies. The Colorado statute, with little change since its enactment, reads as follows:

Except as otherwise provided in subsection (3) of this section and in section 38-31-201, no conveyance or devise of real property to two or more natural persons shall create an estate in joint tenancy in real property unless, in the instrument conveying the real property or in the will devising the real property, it is declared that the real property is conveyed or devised in joint tenancy or to such natural persons as joint tenants. The abbreviation ‘JTWROS' and the phrase ‘as joint tenants with right of survivorship' or ‘in joint tenancy with right of survivorship' shall have the same meaning as the phrases ‘in joint tenancy' and ‘as joint tenants'. Any grantor in any such instrument of conveyance may also be one of the grantees therein. C.R.S. 38-31-101.

“A tenancy in common is a form of ownership in which each co-tenant owns a separate fractional share of undivided property.” Taylor v. Canterbury, 92 P.3d 961, 964 (Colo. 2004). One of the essential rights of a tenancy in common is that all cotenants have the right to possess the entire property. Id. The major distinguishing characteristic of a joint tenancy, as opposed to a tenancy in common, is the right of survivorship in each of the cotenants. Upon the death on one of the cotenants in a joint tenancy, the entire undivided interest of the deceased passes, by operation of law, to the surviving co-tenant. 

Under the current version of the law, “[i]n absence of an affirmative declaration that the estate devised is in joint tenancy, an estate in tenancy in common will be devised, unless it clearly and explicitly appears from the language employed that the testator understood the nature and incidents of the different estates, and intended to create a joint tenancy.” In re Kwatkowski's Estate v. Reindl, et al, 29 P.2d 639 (Colo. 1934). When legal terms are inaccurately used by a layman, the statute which requires a definite and specific declaration is not satisfied. As you can see by the specific language and the degree of intent required, the drafting of deeds, agreements and conveyances can greatly affect the disposition of that property later on. In short, the creation of these tenancies balances on the language of the parties. The termination of these tenancies turns on the intent of the parties.

The information contained on this blog is intended to be general information only and not legal advice. This blog topic is not intended to be fully comprehensive. For these reasons, we suggest you seek a licensed attorney to help you review and revise your agreements to reflect the current state of affairs, as well as, to assist in current and long-term effects of the COVID-19 pandemic. If you have any questions about the contents of this blog or if you need legal advice as to property prenups, please contact the Beavers O'Connell Group at (720)538-0363, [email protected] or fill out a form under our Contact page.

About the Author

Lyndsey M. O'Connell

Lyndsey is a Mississippi native who has found a place to call home in Colorado. She attended high school in the Mississippi Delta at St. Joseph Catholic School. She attended college at Millsaps College in Jackson, Mississippi, obtaining her BS in Special Education. Post-graduation, Lyndsey spent ...

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