Co-Tenancy and Survivorship
Scott W. Dunn
When two or more persons take title to real property as co-tenants, it is important that the deed be carefully prepared so that the co-tenants’ intentions on the issue of survivorship are properly reflected in the deed. Whether the co-tenancy contains a right of survivorship is critical in determining what happens to the ownership interest of a co-tenant at the co-tenant’s death.
The two most common forms of co-tenancies are "tenancy in common" and "joint tenancy". A tenancy in common contains no right of survivorship. With no right of survivorship, upon the death of one of the tenants in common, the deceased’s ownership interest in the real property becomes part of his or her estate. A joint tenancy contains a right of survivorship. On the death of one of the joint tenants, the deceased’s ownership interest passes to the surviving joint tenant or tenants.
If a deed is silent as to whether the co-tenancy is a tenancy in common or a joint tenancy, Colorado law generally presumes that a tenancy in common is created. It is highly recommended that every deed to co-tenants state specifically whether the title is held as tenants in common or as joint tenants. In the case of a joint tenancy, the deed conveying the property should state that the property is conveyed "in joint tenancy" to the grantees or "as joint tenants" or "as joint tenants with right of survivorship" or "in joint tenancy with right of survivorship". In the case of a tenancy in common, the deed should state that the property is conveyed "in tenancy in common" to the grantees or "as tenants in common".
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