From apartments to duplexes, houses to ranches, many Texas tenants often engage in co-tenancy and tenancy in common. Generally, co-tenancy describes the relationship between two or more persons who are involved in joint ownership or ownership in common of property, who each share the right of undivided possession. Alternatively, tenants in common concern an undivided possessory interest in property, where parties hold specific and distinct titles, and are unified by their possession of a property. Though there is a distinction between cotenants and tenants in common, contemporary nomenclature often uses “cotenants” when referring to either of these terms.
Initially, a co-tenancy was an equal right to share in the enjoyment of land for a person’s lifetime. Later, the right of survivorship, a right that allows the ownership interest of dying cotenant to be absorbed by a surviving cotenant, became a default arrangement in the relationship between the parties. However, the Texas Legislature put an end to this practice, following the court’s ruling in Haas v. Voigt (1996). Today, the interest of a deceased cotenant will pass to their heirs and devisees, and not to the surviving cotenants, unless otherwise evidenced by a written agreement between the parties.
Generally, a co-tenancy is created when two or more people share the exclusive use, possession, and enjoyment of real property, held in common. The right to possess the real property is fundamental for co-tenancy. Likewise, individuals who were never entitled to possess the property will not be a cotenant. Once the agreement is entered, each cotenant receives certain rights. A cotenant may bring an action against an offending cotenant when their actions infringe on the co-tenancy. Often, these infringements can include an accounting, a partition of the property, an injunction, damages for trespass, recovery against exclusion or interfering with possession, and to recover from the property or for the prevention of waste. Additionally, cotenants that incur expenses associated with the necessary protection and preservation of the property is entitled to recover for these expenses from the other cotenants, in proportion to their interests.
While cotenants are free to use and enjoy the jointly owned property without incurring liability for its rental value, cotenants who rent the property to a third person must account to the other cotenants. All profits received by rents or use, even minerals extracted from the property, shall be proportioned among all cotenants.
For residents of Texas, knowing the distinctions and rights associated with co-tenancy may be beneficial to identify, maintain, and transfer rights concerning the property. This will allow residents and property owners alike to plan and take action that will yield the most desirable results.
The information contained in this post is for general information and educational purposes only. The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, and the inherent hazards of electronic communication, there may be delays, omissions or inaccuracies in information contained in this publication. Accordingly, the information on this post is provided with the understanding that the author and publishers are not herein engaged in rendering legal, accounting, tax, or other professional advice and services. As such, it should not be used as a substitute for consultation with professional accounting, tax, legal or other competent advisers. Before making any decision or taking any action, you should consult a professional.