Joint Tenancy / Tenancy in Common vs. Tenancy by the Entirety
A detailed comparison of these two property rules, including key differences, exam strategies, and guidance on when to apply each.
Overview
Joint tenancy, tenancy in common, and tenancy by the entirety are the three forms of concurrent ownership in real property law. Each provides co-owners with distinct rights regarding survivorship, transferability, and protection from creditors.
A tenancy in common is the default form of co-ownership. Each tenant holds an undivided interest that is freely alienable, devisable, and descendible. There is no right of survivorship, meaning that when a tenant in common dies, their interest passes through their estate. A joint tenancy features the right of survivorship: when one joint tenant dies, the surviving tenant(s) automatically take the deceased tenant's share. Joint tenancy requires the four unities (time, title, interest, and possession), and any severance of these unities, such as a conveyance by one joint tenant, converts the joint tenancy into a tenancy in common.
Tenancy by the entirety is a special form of concurrent ownership available only to married couples (and in some jurisdictions, domestic partners). It has the right of survivorship like joint tenancy, but it cannot be unilaterally severed by one spouse. Neither spouse can convey or encumber their interest without the other's consent. This provides significant protection from individual creditors: in most jurisdictions, a creditor of only one spouse cannot reach property held as tenants by the entirety. Tenancy by the entirety is terminated only by death, divorce, mutual agreement, or joint conveyance.
Key Differences
| Aspect | Joint Tenancy / Tenancy in Common | Tenancy by the Entirety |
|---|---|---|
| Right of survivorship | Joint tenancy: yes; Tenancy in common: no | Yes, and it cannot be unilaterally severed |
| Who can hold it | Any co-owners (no relationship required) | Only married couples (or domestic partners in some states) |
| Unilateral transfer | Joint tenancy: severs the tenancy; Tenancy in common: freely transferable | Cannot be unilaterally conveyed or encumbered |
| Creditor access | Creditors can reach an individual co-owner's interest | Individual creditors generally cannot reach the property |
| Creation requirements | Joint tenancy: four unities; Tenancy in common: only unity of possession | Four unities plus marriage (fifth unity) |
Exam Tips
On a property exam, start by determining which type of concurrent estate exists. Look for language of survivorship and the relationship of the parties. If the parties are married and the jurisdiction recognizes it, consider tenancy by the entirety first. If the four unities are present and the grant expressly creates survivorship, it is a joint tenancy. Otherwise, default to tenancy in common. The most tested issue is severance of joint tenancy: a conveyance by one joint tenant to a third party severs the joint tenancy and creates a tenancy in common. Mortgage jurisdictions split on whether a mortgage severs (title theory vs. lien theory). For tenancy by the entirety, focus on creditor protection and inability to sever unilaterally.
When to Apply Which
Apply tenancy in common as the default when there is no express language of survivorship or when the parties are not married. Apply joint tenancy when the grant expressly creates the right of survivorship with all four unities met. Apply tenancy by the entirety when married couples hold property in a jurisdiction that recognizes this form. The key practical distinction is creditor protection: tenancy by the entirety shields the property from individual creditors, making it the strongest form of protection for married couples.