What are the historical origins of joint-tenancies and tenancies-in-common? (Blackstone, Commentaries on the Laws of England)

Underwood-Blog-Images-2-300x300American law has its roots in the laws of England. As such, many of the laws still on the books in the 21st Century depend on what English judges thought prior to our War for Independence began in 1776. Because our modern laws go back centuries since before the United States was a country, we should care about how our legal terms were originally understood as they may implicate a judge’s decision today. The most important of all the English Judges who influenced our modern laws was most likely Sir William Blackstone. 

Blackstone’s 1765 work, Commentaries on the Laws of England, is his most famous legal treatise, forming the backbone of common law analysis as modern lawyers understand it today. Without his efforts centuries ago, our conceptions of property, individual rights, and governmental authority would not be the same. His works remain cited even now in judicial decisions at all levels, including the Supreme Court of the United States. 

Blackstone’s comments on property law are particularly striking, for they bear the foundational ideas now found in our statutes governing real estate transactions, estate types, property rights, and ownership disputes. His analysis of tenancies in common and joint tenancy is so similar to our own California statutes that they warrant their own discussion. 

What is the common law, and why is it important today? 

The United States has a common law legal system derived from that of England. In the 17th and 18th centuries, judges, lawyers, and scholars from England made their way across the Atlantic to settle in their new colonies. This necessitated bringing the law of England over to govern disputes. When America became its own country, the leading legal scholars used the English system as the basis for their own. Thus, even today, our two countries have incredibly similar legal principles. 

It is for that reason that Blackstone’s Commentaries still has staying power. His analysis of British law allows for his observations to easily transfer over to our own. 

What does Blackstone say about joint tenancies? 

Blackstone begins his writing on the subject by noting that “the creation of an estate in joint tenancy depends on the wording of the deed or devise, by which the tenants claim title…” (2 Blackstone, Commentaries on the Laws of England, Chapter 12, page 180.) This sentence illustrates a requirement of creating joint tenancies that is still true today. 

In California, a joint tenancy cannot be created unless the instrument (the deed, will, etc.) expressly declares the co-ownership as a joint tenancy. (Civ. Code § 683.) Because joint tenancies carry with them the monumentally important Right of Survivorship, the Legislature believed that it would be unfair to impose joint tenancies on co-owners unless they wanted it. 

Blackstone’s further writings on joint tenancy reveal yet another key aspect of this estate still alive today: the four unities. Blackstone writes, “the properties of a joint estate are derived from its unity which is fourfold; the unity of interest, the unity of title, the unity of time, and the unity of possession.” (2 Blackstone, page 180.)

Hundreds of years later, this requirement is still in place. Unless the four unities are concurrently present, the cotenancy cannot be a joint tenancy. (Tenhet v. Boswell (1978) 18 Cal.3d 150, 155.) 

Blackstone’s commentaries on joint tenancies do not end there, however. As a final example of his influence on our modern law, Blackstone writes of the right of survivorship as the “grand incident of joint estates,” explaining that the last survivor “shall be entitled to the whole estate.” (2 Blackstone, page 183.) 

This is, of course, still the case today. When one joint tenant dies, the entire estate belongs automatically to the surviving joint tenant(s). (Grothe v. Cortland Corp. (1992) 11 Cal.App.4th 1313, 1317.) 

What does Blackstone say about tenancies in common? 

Blackstone’s analysis of estates does not end at joint tenancies. His writings on tenancies in common also remain highly influential. 

On the tenancy in common, Blackstone observes, “there is no necessary unity of interest… the only unity there is, is that of possession… because no man can certainly tell which part is his own.” (2 Blackstone, page 192.) 

Blackstone is correct that tenancies in common have only one requirement. “Tenancy in common merely requires, for creation, equal rights of possession or unity of possession.” (Wilson v. S.L. Rey (1993) 17 Cal.App.4th 234, 242.) In essence, all tenants in common have the right to share equally in possession of the entire property. This is true even if one tenant in common has only a 1% ownership interest. They may still possess the whole property. 

Blackstone is also correct in identifying the available legal remedy when the right to possession is unlawfully withheld by one of the co-owners. Blackstone says, “if one [cotenant] actually turns the other out of possession, an action of ejectment will lie against him.” (2 Blackstone, page 194.) 

In California, the term “ejectment” has been replaced by “ouster,” but the principle remains true to this day. An ouster is a wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession. (Estate of Hughes (1992) 5 Cal.App.4th 1607, 1612.) 

Thus, an ousted or “ejected” cotenant can approach the court and ask that their right of possession be restored. It is the fundamental rule that each cotenant has a right to occupy the whole of the property. (Jacobs v. Scobie (1939) 12 Cal.2d 618, 623.) 

How can the Attorneys at Underwood Law Assist You? 

Cotenancy comes in many forms, with joint tenancies and tenancies in common merely being the most prevalent in California. But how title to property is held can make a substantial difference in the rights of a property owner. These rights can come to the forefront in, for instance, partition actions, where joint tenants are expected to split costs and distributions down the middle in an even split. 

As each case is unique, property owners would be well-served to seek experienced counsel familiar with the various forms of co-ownership and legal estates. At Underwood Law, our knowledgeable attorneys are here to help. If you are concerned about the form of your cotenancy, if you’re worried you’re being denied your property rights by a co-owner, or if you just have questions, please do not hesitate to contact our office.

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