Module 2: Concurrent Ownership & Landlord-Tenant Law

Tenancy in common is the modern default form of concurrent ownership. Each co-tenant holds an undivided interest in the whole property (not a fenced-off portion), the shares need not be equal, and there is no right of survivorship — each co-tenant’s share passes through their own estate at death, like ordinary property.

Because no co-tenant can be forced to keep sharing property with someone they no longer want to co-own with, any tenant in common (or joint tenant) can seek a court-ordered partition. Courts strongly prefer partition in kind — physically dividing the land itself — over partition by sale, which forces a sale and divides the proceeds instead; sale is generally ordered only when physical division would be impractical or would substantially harm the property’s value (a single house, unlike a large tract of farmland, usually can’t be divided in kind at all). Separately, a co-tenant in actual possession generally doesn’t have to pay the others rent for merely living there — until an ouster occurs, meaning the possessing co-tenant denies the others’ equal right to possess. Only after an ouster does the excluded co-tenant have a real claim for their share of the property’s rental value.

Example. Peter and John buy a cabin together, taking title simply “to Peter and John,” with no further language. This is presumed to be a tenancy in common. If Peter dies, his share passes under his will (or by intestacy) to his own heirs — not automatically to John.

A joint tenancy requires the traditional four unities at creation: Time (acquired simultaneously), Title (from the same instrument), Interest (equal, undivided shares), and Possession (equal right to the whole). Its defining feature is the right of survivorship.

Riddle v. Harmon, 102 Cal. App. 3d 524 (1980), abolished an old formalistic requirement that once made severing a joint tenancy more cumbersome than it needed to be. At common law, a joint tenant who wanted to convert their own share into a tenancy in common technically couldn’t convey directly to themselves — the unity of title supposedly required routing the transfer through an intermediary “strawman” (conveying to a third party, who would then convey back), purely to satisfy the formal unities on paper. A wife wanting to sever her joint tenancy with her husband used a direct deed to herself instead of a strawman, and the court upheld it, reasoning that requiring an empty, purely formal intermediary step served no real purpose once the underlying policy — letting a joint tenant unilaterally end the arrangement — was satisfied directly. Most states have since followed this reasoning, confirming that a joint tenant may sever simply by a direct conveyance to themselves, without the old strawman formality.

Example. Peter and John buy the same cabin, but this time the deed reads “to Peter and John as joint tenants with right of survivorship.” All four unities are satisfied. If Peter dies, John automatically becomes sole owner of the whole cabin — bypassing Peter’s will and probate entirely for that share.

Any joint tenant can unilaterally sever the joint tenancy simply by transferring their own interest — no permission or notice to the other joint tenants is required. The transferee and any remaining original joint tenants become tenants in common as to that share.

Not every transaction by one joint tenant actually severs the joint tenancy, though — the transfer has to reach the underlying title itself. In Tenhet v. Boswell, 18 Cal. 3d 150 (1976), one joint tenant leased his interest in the property to a third party for a fixed term, without the other joint tenant’s knowledge, and then died while the lease was still running. The surviving joint tenant argued she now owned the whole property by survivorship, free of the lease; the lessee argued the lease had severed the joint tenancy and so survived the death. The California Supreme Court sided with the surviving joint tenant: a lease, unlike an outright transfer of title, doesn’t sever a joint tenancy at all — it merely encumbers the leasing joint tenant’s own interest for as long as that joint tenant remains alive, and the right of survivorship then wipes out the lease along with everything else the deceased joint tenant held. The case is a useful reminder that severance turns on what actually happens to title, not on whatever lesser interest a joint tenant tries to carve out of their own share.

Example. Peter and John hold the cabin as joint tenants. Without telling Peter, John sells his interest to Sam. The joint tenancy is severed as to that share — Sam and Peter now hold as tenants in common, with no right of survivorship between them. If John had instead simply died without ever transferring his interest, the outcome would have been completely different: Peter would have taken the whole cabin by survivorship.

A tenancy by the entirety is available only to married couples, in states that recognize it. Like joint tenancy, it carries a right of survivorship — but unlike joint tenancy, it generally cannot be unilaterally severed by just one spouse, and often protects the property from one spouse’s individual creditors.

Sawada v. Endo, 57 Haw. 608 (1977), shows exactly how far that creditor protection actually reaches. A husband negligently injured two pedestrians in a car accident and was found liable for a judgment far larger than his individual assets could cover. Before the judgment was entered, he and his wife had transferred their home — held as tenants by the entirety — to their children for no real consideration; the injured pedestrians argued the transfer was a fraudulent attempt to shield the house from collection. The Hawaii Supreme Court held that tenancy-by-the-entirety property generally cannot be reached by the individual creditors of just one spouse at all — only a debt owed by both spouses jointly can reach it — so the transfer, whatever its motive, moved nothing the creditors could ever have collected against in the first place. The case is the clearest illustration of why couples in entirety states sometimes hold their home that way deliberately: it can genuinely insulate a family home from one spouse’s individual liability, a real, significant practical consequence flowing straight out of the unilateral-severance restriction.

Example. Peter and his spouse buy a house in a tenancy-by-the-entirety state, taking title as tenants by the entirety. Unlike John in the joint tenancy example above, Peter cannot unilaterally sell or mortgage away his half without his spouse’s participation — the entirety form is specifically designed to prevent exactly that kind of one-sided severance.

There are four leasehold estates: a tenancy for years (fixed start and end date, terminates automatically), a periodic tenancy (renews automatically until proper notice), a tenancy at will (no fixed term, terminable essentially at any time by either side), and a tenancy at sufferance (a holdover tenant who wrongfully stays after their right to possess ends).

A tenancy at sufferance sits in a deliberately awkward middle ground — the holdover tenant is not a trespasser (they entered lawfully and merely overstayed, rather than entering without any right at all), but they also have no continuing right to remain. That distinction matters because it hands the landlord a real choice most other property relationships don’t offer: the landlord may either evict the holdover as an unlawful occupant, or instead treat the holdover’s continued presence as consent to a new periodic tenancy (typically by accepting a further rent payment), binding the tenant to another full rental period on the old lease’s terms. A periodic tenancy carries its own notice trap worth knowing precisely: at common law, ending a year-to-year periodic tenancy generally required six months’ notice, while a month-to-month tenancy typically required only one full month’s notice — timed to end on the last day of a rental period, not just any day the notice happens to be given.

Example. John signs a one-year lease with a fixed end date — a tenancy for years, expiring automatically with no notice needed. When it ends, John stays anyway without a new agreement — now a tenancy at sufferance. If the landlord then accepts John’s next rent check rather than pursuing eviction, that acceptance typically converts it into a new periodic (month-to-month) tenancy instead.

Residential landlords owe an implied warranty of habitability — maintaining the premises fit for basic habitation, addressing defects that materially affect health and safety — along with a covenant of quiet enjoyment. A sufficiently serious, uncured breach can amount to constructive eviction, letting the tenant treat the lease as over after actually vacating.

Javins v. First National Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970), is the landmark case usually credited with establishing the implied warranty of habitability in modern American residential leasing. A landlord sued tenants for nonpayment of rent; the tenants defended by pointing to roughly 1,500 housing code violations in the building. Under the old common-law view, a lease was treated purely as a conveyance of land — the tenant took the property “as is,” and defects in the premises were the tenant’s problem, not grounds to withhold rent. The D.C. Circuit rejected that view for modern residential leases, reasoning that most tenants today are buying a place to live, not a parcel of land to develop themselves, and lack the practical ability to make major repairs — so a residential lease should be treated more like an ordinary contract for housing services, carrying an implied warranty that the unit is actually fit to live in. The decision reshaped landlord-tenant law nationwide, and most states have since adopted some version of the implied warranty of habitability by statute or judicial decision, largely following Javins’s underlying contract-based reasoning.

Example. Sam rents an apartment and reports a serious mold problem in the bathroom. After weeks of no response from the landlord, Sam has real remedies: repair and deduct the cost from rent, withhold or escrow rent, sue for damages, or — since the condition is serious and has gone unaddressed — vacate and treat the lease as constructively terminated.

An assignment transfers a tenant’s entire remaining leasehold interest, putting the assignee in privity of estate with the landlord. A sublease transfers only part of it (in time or space), with the original tenant keeping a reversionary interest and generally staying primarily liable to the landlord.

The traditional common-law test for telling the two apart looked purely at the words used in the transfer document: if the tenant transferred their entire remaining term, it was an assignment regardless of what the parties called it; if the tenant kept even one day of the term for themselves (a right of reentry), it was a sublease, even if the parties had labeled it an assignment. Ernst v. Conditt, 386 S.W.2d 428 (Tenn. 1964), pushed courts toward a more modern approach. A tenant transferred his remaining leasehold to a go-kart track operator, and the transfer document reserved the tenant a right of reentry if the operator breached — under the strict mechanical test, that reservation alone would make it a sublease. The Tennessee court instead looked past the label and the reentry clause to the parties’ actual intent, concluding the parties clearly meant to transfer the entire remaining term and create privity of estate directly between the landlord and the new occupant — making it an assignment despite the reentry language. Many courts have since followed this intent-based approach, though the traditional mechanical test (does any part of the term remain with the original tenant) still controls in a meaningful number of jurisdictions, so both are worth knowing.

Example. John has three years left on his lease and transfers the entire remaining three years to Sam — an assignment; Sam now deals directly with the landlord. Now compare: John transfers only six months of his three-year term to Sam, planning to return afterward — a sublease; John, not Sam, remains primarily on the hook to the landlord for the full term.