Joint Tenancy

Asked 11 months ago - Southfield, MI

In Michigan can a real estate property owner, holding title as a joint tenant with rights of survivorship with 1 other person (they are not spouses), break the joint tenancy without consent of the other joint tenant, simply by transferring their interest in the real estate by quit claim deed, to a third party, or even by transferring their interest by quit claim deed, to himself?

Additional information

Thanks,
Please clarify, we only want to break the JT, if 1 of the JTWRS, transfered their interest to 3rd party with a Quit Claim Deed,
wouldn't the then current title holders be Joint Tenants in common?

Here is information from Attorneys in other states:

http://www.avvo.com/legal-answers/how-can-a-joint-tenancy-be-broken--954783.html

Attorney answers (4)

  1. Gregory Bradford Paddison

    Contributor Level 10

    1

    Lawyer agrees

    1

    Answered . Found some case law that spells it out pretty well.

    See (Article III): http://statecasefiles.justia.com/documents/mich...

    Michigan law recognizes two types of joint tenancy: a “standard” joint tenancy, and an
    “indestructible” joint tenancy.

    The principal characteristic of both the standard and indestructible joint tenancy is the right of
    survivorship.

    However, in a standard joint tenancy, unlike in an indestructible joint tenancy, the right of survivorship may be destroyed by severance of the joint tenancy. A standard joint tenancy may be severed by an act of the parties, by conveyance by either party, or by levy and sale on an execution against one of the parties.

    One way to sever a joint tenancy is a partition action.

    By contrast, an indestructible joint tenancy (which is functionally equivalent to a life estate with dual contingent remainders) may not be severed by a unilateral action of one of the parties, because such unilateral action would deprive the other party of his right of survivorship.

    In an ordinary joint tenancy, the right of survivorship can be destroyed by severance of the joint tenancy through an act of one tenant by such means as conveyance to a third party or by levy and sale, and the remaining joint tenant or tenants and the grantee then become tenants in common.

    On the other hand, a joint tenancy with full rights of survivorship is composed of a joint life estate with dual contingent remainders. The operative contingent remainder is in fee simple. While the survivorship feature of the ordinary joint tenancy may be defeated by the act of a cotenant, the dual
    contingent remainders of the joint tenancy with full rights of survivorship are indestructible. The contingent remainder of a cotenant is not subject to being destroyed by the actions of the other cotenant.

    Differentiating between a standard joint tenancy and an indestructible joint tenancy turns
    on the language of the granting instrument; in order to create an indestructible joint tenancy, the
    instrument must include express words of survivorship, such as “and to the survivor of them,”
    “to them and the survivor of them,” “or survivor of them,” “with right of survivorship,” or “with
    full rights of survivorship.”

  2. Eric J. Guerin

    Contributor Level 9

    1

    Lawyer agrees

    Answered . Probably not. The life estate portion of the joint survivorship estate is alienable/transferable, but the contingent remainder portion is not.

    This response is for informational purposes only and is not legal advice, nor does it rise to an attorney client... more
  3. Christine Marie Heckler

    Contributor Level 16

    Answered . Do not rely on opinions from attorneys in other states. "Joint tenants with rights of survivorship" has a very specific legal meaning under Michigan law that is different from many other states.

    Michigan law recognizes two types of joint tenancy: a “standard” joint tenancy, and an “indestructible” joint tenancy. Albro v Allen, 434 Mich 271, 274-275; 454 NW2d 85 (1990). The “principal characteristic” of both the standard and indestructible joint tenancy is the right of survivorship; that is, “[u]pon the death of one joint tenant, the surviving tenant or tenants take the whole estate.” Id. (internal citations omitted). However, in a standard joint tenancy, unlike in an indestructible joint tenancy, “the right of survivorship may be destroyed by severance of the joint tenancy.” Id. at 275. A standard joint tenancy “may be severed by an act of the parties, by conveyance by either party, or by levy and sale on an execution against one of the parties.” Id. One way to sever a joint tenancy is a partition action. Smith v Smith, 290 Mich 143, 155; 287 NW 411 (1939), quoting Midgley v Walker, 101 Mich 583, 584; 60 NW 296 (1894). By contrast, an indestructible joint tenancy (which is functionally equivalent to a life estate with dual contingent remainders) may not be severed by a unilateral action of one of the parties, because such unilateral action would deprive the other party of his right of survivorship. Albro, 434 Mich at 275-276. As observed by this the Court of Appeals:

    . . .in an ordinary joint tenancy, the right of survivorship can be destroyed by severance of the joint tenancy through an act of one tenant by such means as conveyance to a third party or by levy and sale, and the remaining joint tenant or tenants and the grantee then become tenants in common. On the other hand, a joint tenancy with full rights of survivorship . . . is composed of a joint life estate with dual contingent remainders. The operative contingent remainder is in fee simple. “While the survivorship feature of the ordinary joint tenancy may be defeated by the act of a cotenant, the dual contingent remainders of the joint tenancy with full rights of survivorship are indestructible.” The contingent remainder of a cotenant is not subject to being destroyed by the actions of the other cotenant. [Wengel, 270 Mich App at 94-95, citing Albro, 434 Mich at 275-276, 278 (footnotes and citations omitted).]

    Differentiating between a standard joint tenancy and an indestructible joint tenancy turns on the language of the granting instrument; in order to create an indestructible joint tenancy, the instrument must include express words of survivorship, such as “and to the survivor of them,” “to them and the survivor of them,” “or survivor of them,” “with right of survivorship,” or “with full rights of survivorship.” Albro, 434 Mich at 275 (internal citations omitted).

    DISCLAIMER: This answer is provided as general information, which may not be appropriate for the specific facts of... more
  4. J. Thomas Smith Ph.D.

    Pro

    Contributor Level 20

    Answered . I agree with my colleagues.

    Law Offices of J Thomas Smith J.D., Ph.D 11500 Northwest Freeway, Suite 280 Houston, TX 77092 713-LAWYER-2 www.... more

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