PROPERTY PRENUPS: Termination

Posted by Lyndsey M. O'Connell | Aug 03, 2020 | 0 Comments

PART 3: Termination and Conversion of Tenancies. 

In determining whether a joint tenancy remains and devises to the benefit of another joint tenant or whether there was a termination that created a tenancy in common, the earlier cases tended to turn the determination of whether or not the acts of co-tenants destroyed one of the essential four unities of time, title, interest or possession. This becomes relevant in divorces, settlements, sales, devises, etc. 

For instance, where a home held in joint tenancy by two people is part of a settlement agreement in which one party remains in the property for 2 years and then has to sell it, equally dividing the profit --what if one of those parties dies? Does it automatically go to the other party since it was held as a joint tenancy or did the agreement requiring the sale of the property sever the joint tenancy and create a tenancy in common? Although rarely considered when the home is purchased, these issues have become common topics of litigation, wherein legal considerations can be complex. 

The modern trend of courts is to focus on the intent of the parties with regard to the right of survivorship characteristic. Actions by the co-tenants which are inconsistent with the right of survivorship operate to terminate the joint tenancy. Where parties enter into an agreement “which provides unconditionally for the ultimate sale of [] property and the division of proceeds, a joint tenancy between the parties in that property is thereby terminated.” Bradley v. Mann, 525 P.2d 492 (Colo. App. 1974). Even if the term “joint tenancy” was used in the agreement, the court ultimately has to determine whether it provided for an ultimate disposition which would be inconsistent with the right of survivorship. 

As you can see, determining these issues, on the front end can save a lot of time and money. They can also avoid any ambiguity as to the intent at that time, before things go south. That is why we have begun drafting cotenancy agreements that lay out the rights, duties and agreements of the parties. So that in the unfortunate event that things to not go as planned, the court is not left with the job of deciding the original intent of the parties. To understand how these agreements should be drafted, the context in which they are used becomes important.

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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