Understanding Tenancy-At-Will in Delaware

“At common law, real property transferred equally to two or more persons jointly was presumed to be held thereafter by those persons as joint tenants with right of survivorship, unless the documents of transfer provided explicitly that the property would be held as tenants in common.” (See Banks v. Banks (2016) 135 A.3d 311, 313-14.)

“The primary difference between these types of joint estates is the treatment of ownership following the death of a joint tenant: in the case of the former, the decedent's interest automatically vests in the surviving joint tenant; in the latter case, the fractional interest held by the decedent passes through his estate.” (See id.)

“At English common law, joint tenancies rather than tenancies in common were favored.... As a matter of law, where a deed conveyed property to two or more persons jointly, the common law presumed that the interest created in the grantees was that of a joint tenancy.... In order to create a tenancy in common, it was necessary that the conveyance be specific and affirmatively provide language to confirm the grantor's intent to create a tenancy in common.” (See id; Durant v. Hamrick (1981) 409 So.2d 731, 733.)

“The term ‘joint tenancy’ implies (though perhaps not conclusively) an estate with right of survivorship.” (See Banks v. Banks (2016) 135 A.3d 311, 314 n.4; see also Black's Law Dictionary 1313 (5th ed. 1979) [stating that a [j]oint tenancy is [a]n estate ... arising by purchase or grant to two or more persons...].)

Rules for Joint Tenancy

Title 25, Chapter 7, Sections 701-02 governs the creation of an estate in join tenancy. “No estate, in joint tenancy, in lands, tenements or hereditaments shall be held or claimed by or under any grant, devise or conveyance made to any persons, other than to executors or trustees, unless the premises therein mentioned are expressly granted, devised or conveyed to such persons, to be held as joint tenants and not as tenants in common.” (See Del. Code tit. 25 § 701.)

“A tenant in common or a joint tenant or a coparcener may maintain against a cotenant an action for use and occupation.” (See Del. Code tit. 25 § 702.)

“Section 701 provides that no estate in joint tenancy is created unless the premises ... are expressly granted, devised or conveyed ..., to be held as joint tenants and not as tenants in common. The statute could, but does not, include required language within quotation marks or otherwise direct that specific statutory language be used. Further, nothing on the face of the statute expressly requires that the language of conveyance include an explicit rejection of a tenancy in common in order to create a joint tenancy WROS. The statute simply requires that the language ‘expressly’ convey the property in a way demonstrating that the estate created is to be held in joint tenancy [with right of survivorship] WROS, and not as a tenancy in common.” (See Banks v. Banks (2016) 135 A.3d 311, 317.)

Joint Tenancies WROS v. Tenancies in Common

“Under a joint tenancy WROS, property is held jointly by two or more persons, each regarded as the tenant of the whole for purposes of tenure and survivorship, while for purposes of alienation and forfeiture each has an undivided share only. Upon the death of one of the joint tenants his interest does not descend to his heirs or pass under his will; the entire ownership remains in the surviving joint tenant(s).” (See Banks v. Banks (2016) 135 A.3d 311, 317-18; Tiffany Real Prop. § 421 (3d ed. 2015).)

To create a joint tenancy, four ‘unities’ are required: unity of time, title, possession, and interest. A cotenant may break a joint tenancy WROS by disturbing the unities of title and time through a ‘straw-man’ conveyance, thereby creating a tenancy in common.” (See id; Farmers Bank of State of Del. v. Howard (1969) 258 A.2d 299, 301, aff'd in part sub nom., Howard v. Farmers Bank (1970) 268 A.2d 870.)

“[J]oint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession.” (See Banks v. Banks (2016) 135 A.3d 311, 318 n.26.)

“A tenancy in common, by contrast, requires only the unity of possession; each cotenant holds an equal right to possess the jointly held premises, so long as that possession is not to the exclusion of the other cotenants.” (See id; Tiffany Real Prop. § 421 (3d ed. 2015).)

“Unlike with a joint tenancy WROS, since [the cotenants] hold separate interests, [they] need not have equal shares in the property, and need not obtain their titles simultaneously. Additionally, as tenancies in common do not include a right of survivorship, a cotenant in common can leave her share to any beneficiary upon death.” (See id.)

Legal Precedents and Case Law on Joint Tenancy

“In Short v. Milby, this Court found that a conveyance to two individuals ‘jointly and not as common tenants their Heirs and Assigns, forever’ created a joint tenancy. While this case involved both positive language—'jointly’—and negative language—'and not as common tenants’—the Court indicated its view that negative language is not necessarily required to establish a joint tenancy WROS.” (See Banks v. Banks (2016) 135 A.3d 311, 320-21; Short v. Milby (1949) 64 A.2d 36.)

“Specifically, the Court expressed in dictum that, [i]t may be safer to use the words of the statute ..., but that is not absolutely essential if the grantor's intent to create a [joint tenancy WROS] clearly appears from the language used. In a more recent decision by the Bankruptcy Court in In re Kelly, the court came to a similar conclusion, finding that ‘Delaware law mandates that the creation of a joint tenancy be expressly stated or that the granting instrument ‘negatively state’ that the persons holding the property are not tenants in common.’” (See id; see also 2 Tiffany Real Prop. § 424 (3d ed. 2015) [It is not necessary to use the exact words of the statute in order to show an intention to create a joint tenancy. It is sufficient if the language employed be such as to show clearly and explicitly that the parties intend that the lands are to pass in joint tenancy].)

“If one of the joint tenants sells their interest in the property, they break the joint tenancy and create a tenancy in common.” (See Morton v. Rogers, C.A. No. 2017-0603-PWG, at *17 (Del. Ch. Feb. 22, 2018); In re Ellingsworth (1970) 266 A.2d 890, 891; Korn v. Korn, 2015 WL 1862784, at *7 (Del. Ch. Apr. 22, 2015) [The common law has long recognized a right to sever the unities [of a joint tenancy with the right of survivorship] and create a tenancy in common through sale of one owner's interest].)

Current as of June 10, 2024 || Updated by Trellis Law Content Team

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