Minnesota Joint Tenancy

Minnesota Forms of Co-ownership

In 1968, the Minnesota Supreme Court identified that under the historical common law, there were three types of co-ownership of real property:

tenancy in common,
joint tenancy, and
tenancy by the entirety.

See Hendrickson v. Minneapolis Federal Sav. & Loan Ass’n, 161 N.W.2d 688, 281 Minn. 462 (Minn., 1968).

Both tenancy in common and joint tenancy are still recognized in Minnesota.

However, tenancy by the entirety is no longer authorized in Minnesota.

Minnesota Tenancy in Common

Under the tenancy in common form of title ownership, each co-owner holds an undivided percentage of the total real property ownership interests.

See Chester H. Smith, Real Property Survey, page 120, West Publishing, 1956.

In other words, a tenancy in common will exist when a distinct undivided fractional share is held by each individual owner.

See Chester H. Smith, Real Property Survey, page 18, West Publishing, 1956.

For example, if there are two tenants-in-common with respect to a real property interest, each tenant-in-common will typically own an undivided 50% of the real property interest.

The grantees in a Deed of Conveyance which creates a tenancy in common will take equal fractional interests unless the Deed of Conveyance or other circumstances indicate a contrary intent.

See Chester H. Smith, Real Property Survey, page 18, West Publishing, 1956.

Each tenant in common will have the right to dispose of his or her share, or any fractional interest therein, by a Deed of Conveyance or Last Will and Testament.

See Chester H. Smith, Real Property Survey, page 19, West Publishing, 1956.

Upon the death of a tenant in common, the tenant in common’s interest in real property will descend to his or her heirs pursuant to Minnesota laws of intestate succession, in the absence of a valid disposition of the real property interest pursuant to a probated Last Will and Testament.

See Chester H. Smith, Real Property Survey, page 19, West Publishing, 1956.

Minnesota Joint Tenancy – Title Standards

The Real Property Section of the Minnesota State Bar Association has adopted at least 10 “title standards” relating to Minnesota joint tenancy interests – three of which address the severance or termination of Minnesota joint tenancy interests.

Such Minnesota Title Standards are not legislative statutes, and do not have the force and effect of governmental sanction.

Nevertheless, the Minnesota Title Standards are typically recognized by Minnesota title examiners as being an accurate summation of the governing rules with respect to the issues identified therein.

Therefore, all Minnesota joint tenancy issues should be reviewed by Minnesota legal counsel in light of the Minnesota Title Standards addressing such matters.

Joint Tenancy – Effect of Survivorship

Minnesota joint tenancy title ownership differs from Minnesota tenancy in common title ownership in that the surviving Minnesota joint tenant(s) effectively succeeds to the real property title interests of a deceased Minnesota joint tenant with whom the Minnesota joint tenancy title was shared.

See Title Standard No. 89, Real Property Section of the Minnesota State Bar Association.

See White Pages, I-B-4, Real Property Section of the Minnesota State Bar Association.

Such real property survivorship rights will defeat any succession rights which may be claimed by the estate of the deceased Minnesota joint tenant with whom the Minnesota joint tenancy title ownership was shared.

By definition, survivorship rights are a necessary component of the Minnesota joint tenancy form of title ownership because all of the Minnesota joint tenants collectively constitute a single person.

See Chester H. Smith, Real Property Survey, page 17, West Publishing, 1956.

Minnesota Joint Tenancy – Undivided Ownership of the Entire Interest

Under the Minnesota joint tenancy form of title ownership, every Minnesota joint tenant owns the same undivided 100% of the property interest.

See Chester H. Smith, Real Property Survey, page 114, West Publishing, 1956.

This means that an individual Minnesota joint tenant does not own an undivided percentage of the total ownership interest.

Rather, each Minnesota joint tenant is one member of a collective unit which owns the entire property interest.

See Chester H. Smith, Real Property Survey, page 114, West Publishing, 1956.

The fundamental requirements of a Minnesota joint tenancy interest is that two or more persons who are properly identified as Minnesota joint tenants hold title to real property as though they were a single person.

See Chester H. Smith, Real Property Survey, page 114, West Publishing, 1956.

Joint Tenancy – Proof of Survivorship

After the death of one Minnesota joint tenant, the following documents will be required to be recorded or filed in the County real estate records in order to clear the decedent joint tenant’s title interest in real property:

(1) Certified copy of Death Certificate of the deceased Minnesota joint tenant.

M.S. § 508.71, Subd. 5, and M.S. § 507.29.

(2) An Affidavit of Identity and Survivorship executed by one of the surviving Minnesota joint tenants, or by any person having knowledge of the facts of death and survivorship.

See White Pages, I-B-4, Real Property Section of the Minnesota State Bar Association.

The Affidavit of Identity and Survivorship must identify:

the deed or instrument which created the Minnesota joint tenancy, and
the deceased Minnesota joint tenant as the person named in the Death Certificate.

See White Pages, I-B-4, Real Property Section of the Minnesota State Bar Association.

However, in some Minnesota counties, the recording or filing of a certified copy of the Death Certificate of the deceased Minnesota joint tenant will be sufficient to clear the decedent joint tenant’s title interest in the real property.

If title is held by more than two Minnesota joint tenants, upon the death of one of the joint tenants, the decedent’s interest in the real property will have terminated, and the title to the real property will remain in the survivors as joint tenants.

Minnesota Joint Tenancy – Multiple Owners Required

An individual cannot own all of the Minnesota joint tenancy rights in a parcel of real property.

Title Standard No. 62 issued by the Real Property Section of the Minnesota State Bar Association – in effect since 1949 – identifies that any real property Deed of Conveyance which purports to convey a title interest to Minnesota joint tenants, but only names one person as the grantee:

does not create a Minnesota joint tenancy, and
should be deemed to be a Deed of Conveyance to the individual grantee alone.

Joint Tenancy – Method of Creation

A Minnesota joint tenancy in real property can only be created pursuant to:

a Deed of Conveyance, or
a probated Last Will and Testament.

See Chester H. Smith, Real Property Survey, page 113, West Publishing, 1956.

This means that a Minnesota joint tenancy interest can never be created pursuant to the Minnesota laws of intestacy in the absence of a probated Last Will and Testament.

See Chester H. Smith, Real Property Survey, page 113, West Publishing, 1956.

Minnesota Joint Tenancy – Historical Four Unities Required

Under the historical common law in Minnesota, four requirements had to be satisfied before any real property title would be recognized as a Minnesota joint tenancy interest:

Time – all of the Minnesota joint tenants must have acquired their interests in the real property at the same time.

Title Source – all of the Minnesota joint tenants must have received their interests in the real property pursuant to the same Deed of Conveyance, or the same probated Last Will and Testament.

Interest – all of the Minnesota joint tenants must have received the same identical interest in the real property.

Possession – physical possession of the real property must have been taken by at least one of the Minnesota joint tenants – which would constitute the physical possession of all of the joint tenants at the same time. This is actually the same rule with respect to Minnesota tenancies in common.

See Chester H. Smith, Real Property Survey, page 17, West Publishing, 1956.

However, Minnesota abolished the above requirements by statute in 1979.

See M.S. § 509.19.

Joint Tenancy – Creation

M.S. Section 500.19, Subd. 2 identifies that tenancies in common are the default form of co-ownership in Minnesota, by providing in part as follows:

All grants and devises of lands, made to two or more persons, shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy. . . .

Therefore, if a Minnesota joint tenancy is to be created in real property, the Deed of Conveyance or probated Last Will and Testament must specifically identify that the grant or devise of land is to be held by two or more persons as Minnesota joint tenants.

Title Standard No. 20 issued by the Real Property Section of the Minnesota State Bar Association – in effect since 1946 – identifies that any real property Deed of Conveyance which purports to convey a title interest to two or more persons as joint tenants will be sufficient to establish a Minnesota joint tenancy interest, even in absence of the words “and not as cotenants“.

Minnesota Tenancy of the Entirety

Under the historical common law, a tenancy of the entirety was a form of joint tenancy title ownership with the added requirement of unity between a husband and a wife as one legal person.

See Chester H. Smith, Real Property Survey, page 18, West Publishing, 1956.

The survivorship aspect of a Minnesota joint tenancy is similar to that found in a tenancy of the entirety form of title ownership – which existed at common law – but is not currently recognized in Minnesota.

A tenancy of the entirety – which could exist only between a husband and a wife – operated like a Minnesota joint tenancy in the sense that survivorship rights between spouses were mandatory.

See Chester H. Smith, Real Property Survey, page 18, West Publishing, 1956.

However, a tenancy of the entirety was distinguished from a Minnesota joint tenancy because:

a partition of the title ownership of a tenancy of the entirety by the court was not permitted, and
there was no method by which a tenancy of the entirety could be converted into a tenancy in common.

See Chester H. Smith, Real Property Survey, page 18, West Publishing, 1956.

In 1890, the Minnesota Supreme Court identified that the tenancy by the entirety form of real property title ownership had been abolished in Minnesota, by providing in part as follows:

An incident or property of this peculiar estate, by the entirety, which it had in common with the estate in joint tenancy, was the right of survivorship.
But, unlike the case of joint tenancy, neither of the parties could alien [convey the property] without the assent of the other.
The reason for the rule upon conveyances to husband and wife, as given by Blackstone, (book 2, c. 12, p. 182, Cooley’s 2d Ed.,) was:
“For, husband and wife being considered as one person in law, they cannot take the estate by moieties, (that is, each taking an undivided half of the whole estate,) but both are seised of the entirety per tout et non permy.”
It would seem as though the reason for the rule having ceased, and unity, so far as rights of property are concerned no longer existing,
the wife being as capable of taking and holding property as though she were unmarried, and
she and her husband being no more considered as one person in the law as to property,
there could no longer be any foundation for the rule.

And the statute has very clearly abolished that sort of tenancy; that is, by the entirety.

Wilson v. Wilson, 43 Minn. 398, 45 N.W. 710 (Minn., 1890)

Feudal Origins of Joint Tenancy

“This royal throne of kings, this sceptr’d isle,

This earth of majesty, this seat of Mars,

This other Eden, demi-paradise;

This fortress, built by nature for herself,

Against infection, and the hand of war;

This happy breed of men, this little world,

This precious stone set in the silver sea,

Which serves it in the office of a wall,

Or as a moat defensive to a house,

Against the envy of less happier lands;

This blessed plot, this earth, this realm, this England,

This nurse, this teeming womb of royal kings,

Fear’d by their breed, and famous by their birth.”

Shakespeare, Richard II., Act II. Sc. 1.

In a feudal society, a person having legal sovereignty over land – known as an overlord – offered protection from enemies to his vassals in return for allegiance, and the performance of certain duties and services.

Feudalism Favored Joint Tenancy

At common law, joint tenancy was the favored form of title ownership in a feudal society because:

when the overlord called upon one of his vassals to provide the required duties and services,
it was deemed to be a call upon all of the joint tenants with respect to a parcel of land – by reason of the fact that all of the joint tenants were seen collectively as one vassal – rather than as multiple vassals.

See Chester H. Smith, Real Property Survey, page 17, West Publishing, 1956.

Minnesota Favors Tenancy-in-Common

In Minnesota – where feudal duties no longer exist – the presumption is that a conveyance of real property to co-owners will result in a tenancy in common form of title ownership, unless a Minnesota joint tenancy is specifically identified in the Deed of Conveyance.

See Chester H. Smith, Real Property Survey, page 113, West Publishing, 1956.

Minnesota Joint Tenancy – Termination

A Minnesota joint tenancy can be terminated:

by a Deed of Conveyance or other Declaration of Severance executed, and sometimes recorded or filed, during the lifetime of the Minnesota joint tenant;
by a legal partition court action;
by the bankruptcy of a Minnesota joint tenant;
by a decree of dissolution of a marriage involving a Minnesota joint tenant; or
by the death of a Minnesota joint tenant caused by the felonious and intentional killing by another joint tenant.

See White Pages, I-B-4, Real Property Section of the Minnesota State Bar Association.

Joint Tenancy – Inter Vivos Severance

While a severance of a Minnesota joint tenancy can be made by an inter vivos Deed of Conveyance or other Declaration of Severance – a severance can never be made pursuant to a probated Last Will and Testament – because the legal effect of the survivorship of a Minnesota joint tenant:

is prior to, and thereby defeats,
the legal effect of a probated Last Will and Testament.

If all but one of the Minnesota joint tenants die without having severed their interests, the lone survivor will own the entire real property individually.

See Title Standard No. 89, Real Property Section of the Minnesota State Bar Association.

See White Pages, I-B-4, Real Property Section of the Minnesota State Bar Association.

Severance of a Minnesota Joint Tenancy – M.S. Section 500.19, Subd. 5

M.S. Section 500.19, Subd. 5 identifies the manner in which a severance – a termination – of a Minnesota joint tenancy can be made, by providing in part as follows:

A severance of a joint tenancy interest in real estate by a joint tenant shall be legally effective only if
(1)     the instrument of severance is recorded in the office of the county recorder or the registrar of titles in the county where the real estate is situated; or
(2)     the instrument of severance is executed by all of the joint tenants; or
(3)     the severance is ordered by a court of competent jurisdiction; or
(4)     a severance is effected pursuant to bankruptcy of a joint tenant.

Severance of a Joint Tenancy – By One Joint Tenant

While M.S. Section 500.19, Subd. 5 identifies that one Minnesota joint tenant may unilaterally terminate a Minnesota joint tenancy, the Minnesota Supreme Court declared in 2004 that any such severance will be effective only if no consideration or irrevocable action was taken by any of the joint tenants in reliance upon the creation of the Minnesota joint tenancy.

See Kipp v. Sweno, 683 N.W.2d 259 (Minn., 2004), citing Hendrickson v. Minneapolis Fed. Sav. & Loan Ass’n, 281 Minn. 462, 161 N.W.2d 688 (1968).

In that case, the Minnesota Supreme Court identified that:

We have previously noted the general proposition that a person’s “right to occupy [his or her] home is inviolable, irrespective of the meagerness or abundance of [his or her] wealth.”

Kipp v. Sweno, 683 N.W.2d 259, 267, (Minn., 2004), citing Thiede v. Town of Scandia Valley, 217 Minn. 218, 225-26, 14 N.W.2d 400, 405 (1944).

Furthermore, where consideration was given by a joint tenant, a unilateral severance of the joint tenancy “would not be effective to deprive the passive joint tenant of the rights so created.”

Kipp v. Sweno, 683 N.W.2d 259, 267, (Minn., 2004), citing Hendrickson, 281 Minn. at 467, 161 N.W.2d at 692.

Appellant’s spouse has suffered detrimental reliance on her joint tenant interest in this homestead property, including joining in and obligating herself to repay three mortgages on the homestead in the approximate amount of $75,000.

Due to appellant’s spouse’s consideration upon creating the joint tenancy, combined with an unavoidable loss of her property rights in the event of a severance and sale, it does not seem reasonable to allow a unilateral action of a judgment creditor that would deprive appellant’s spouse of her passive joint tenant rights.

We therefore reverse the court of appeals and remand to the district court to void and set aside the sheriff’s sale of appellant’s homestead property.

Id.

In Kipp v. Sweno, the Minnesota Supreme Court identified existing law which provided that:

if the survivor had taken some irrevocable action in reliance upon the creation or existence of the joint tenancy, or
if some consideration was given or received when the joint tenancy was created,

any such unilateral action would not be effective to deprive the non-terminating Minnesota joint tenant of the rights so created.

Nevertheless, a recorded Declaration of Severance by one Minnesota joint tenant which was intended to sever a Minnesota joint tenancy may be sufficient when the non-severing joint tenant did not provide any of the consideration on creation of the Minnesota joint tenancy.

Severance of a Joint Tenancy – Non-Homestead Property

With respect to non-homestead property, the unilateral severance of a Minnesota joint tenancy by one spouse pursuant to M.S. Section 500.19, Subd. 5 can perhaps be achieved.

Severance of a Minnesota Joint Tenancy – Homestead Property

However, with respect to Minnesota homestead property, there may be a conflict between:

M.S. Section 500.19, Subd. 5, and
M.S. Section 507.02 – which provides in part that no conveyance of the homestead is valid with the signature of both spouses.

In 2004, the Minnesota Supreme Court identified that:

According to Minn.Stat. § 510.01 (2002), a homestead is defined as:
The house owned and occupied by a debtor as a debtor’s dwelling place, together with the land upon which it is situated to the amount of an area and value hereafter limited and defined, shall constitute the homestead of such debtor and the debtor’s family, and be exempt from seizure of sale under legal process on account of any debt not lawfully charged thereon in writing * * *.
If the debtor is married,
“the homestead title may be vested in either spouse, and the exemption shall extend to the debts of either or of both * * * and the dwelling house so owned and occupied shall be exempt.”

Minn.Stat. § 510.04 (2002).

Minnesota case law has historically liberally construed the homestead exemption in favor of the debtor.

See e.g., Northwestern Nat. Bank of S. St. Paul v. Kroll, 306 N.W.2d 104, 105 (Minn.1981); Denzer v. Prendergast, 267 Minn. 212, 217-18, 126 N.W.2d 440, 444 (1964);

In re Olson, 45 B.R. 501, 504 (Bankr.D.Minn.1984).

Kipp v. Sweno, 683 N.W.2d 259, 262 (Minn., 2004).

When the real property subject to a Minnesota joint tenancy is homestead property, some title examiners believe that marital rights in the property may not be unilaterally severed by either spouse by the recording or the filing of a Declaration of Severance document.

Since the only way to know with certainty that any given real property is non-homestead occurs when a Minnesota court issues a declaratory judgment, many title examiners presume that all land is homestead.

Therefore, a recorded Declaration of Severance document with respect to a Minnesota joint tenancy which has been executed by only one spouse who is married may not be effective for its intended purposes.

Severance of a Joint Tenancy – Dissolution of a Marriage

M.S. Section 500.19, Subd. 5 identifies a general rule, and also an exception, with respect the severance of a Minnesota joint tenancy pursuant to a dissolution of marriage action involving a Minnesota joint tenant, by providing in part as follows:

A decree of dissolution of a marriage severs all joint tenancy interests in real estate between the parties to the marriage, except to the extent the decree declares that the parties continue to hold an interest in real estate as joint tenants.

Conclusion – Minnesota Joint Tenancy

Minnesota joint tenancy title ownership is distinguished from Minnesota tenancy in common title ownership by reason of the fact that the surviving Minnesota joint tenant(s) succeed to the property interests of a deceased Minnesota joint tenant with whom the joint tenancy was shared.

However, a presumption arises in Minnesota that a conveyance of real property to co-owners will result in a tenancy in common, unless a Minnesota joint tenancy is specifically identified in the Deed of Conveyance.

Gary C. Dahle – Attorney at Law

2704 Mounds View Blvd., Mounds View, MN 55112

Phone: 763-780-8390 Fax: 763-780-1735

gary@dahlelaw.com

——— Gary C. Dahle Attorney at Law ———

Minnesota Joint Tenancy

Minnesota Forms of Co-ownership

Minnesota Tenancy in Common

Minnesota Joint Tenancy – Title Standards

Joint Tenancy – Effect of Survivorship

Minnesota Joint Tenancy – Undivided Ownership of the Entire Interest

Joint Tenancy – Proof of Survivorship

Minnesota Joint Tenancy – Multiple Owners Required

Joint Tenancy – Method of Creation

Minnesota Joint Tenancy – Historical Four Unities Required

Joint Tenancy – Creation

Minnesota Tenancy of the Entirety

Feudal Origins of Joint Tenancy

Feudalism Favored Joint Tenancy

Minnesota Favors Tenancy-in-Common

Minnesota Joint Tenancy – Termination

Joint Tenancy – Inter Vivos Severance

Severance of a Minnesota Joint Tenancy – M.S. Section 500.19, Subd. 5

Severance of a Joint Tenancy – By One Joint Tenant

Severance of a Joint Tenancy – Non-Homestead Property

Severance of a Minnesota Joint Tenancy – Homestead Property

Severance of a Joint Tenancy – Dissolution of a Marriage

Conclusion – Minnesota Joint Tenancy