Tenancy in common
Tenancy in common is co-ownership of property without survivorship: when one owner dies, that owner's share descends to heirs, passes by will, or goes to the personal representative, rather than to the other owners. In Virginia, tenants in common, like joint tenants, may compel partition of the property they share.
Jointly, as joint tenants, with survivorship: what the words after the names tell you
Find the owners' names in the granting clause of the recorded deed and read the few words that follow them, or notice that none do. In Virginia those words, more than anything a family calls its arrangement, are the first clue to how the owners hold the land together.
| What the instrument says | What the statute says about it |
|---|---|
| "jointly" or "as joint tenants", with nothing added | A joint tenancy without survivorship. At a death, the share passes as if the owners had been tenants in common. |
| "with survivorship" or equivalent language added | Presumed to create a joint tenancy with the right of survivorship as at common law. |
| Conveyed to spouses, with no joint tenancy or tenancy by the entirety language | Held by moieties, as if each spouse had been given a distinct half by a separate conveyance. |
| The instrument as a whole manifestly shows the survivors were meant to take | The deceased owner's part belongs to the others. |
The rule behind the first row sits in Va. Code 55.1-134. When a joint tenant dies, the part "shall descend to his heirs, pass by devise, or go to his personal representative, subject to debts or distribution, as if he had been a tenant in common." No statute read for this entry defines tenancy in common; the sections read describe it by what happens at a death.
Where the land came to several people by inheritance rather than by a deed naming them, a will or the rules of intestate succession set the shares, and the questions change. How a family sells a tract that arrived that way is covered in how to sell land you inherited, and how deed language is drafted and recorded in the first place is in what a Virginia deed does.
A tenant in common can ask a court to divide the land, and division in kind comes first
Shared ownership works while the owners agree. When they do not, Virginia's partition statute gives each of them a way out: tenants in common, joint tenants, executors with the power to sell and coparceners may all compel partition.
The statute starts with dividing the ground itself. The court "shall order partition in kind if the real property in question is susceptible to a practicable division." When it does order partition in kind, the court weighs a list of factors, and one of them is a party's sentimental attachment to a portion of the property, including attachment that arises because the portion has ancestral or other special value to that party.
Before a court is authorized to allot or sell an undivided interest in a partition action, it shall first determine that partition in kind cannot be practicably made.
Va. Code 8.01-83
Only after that finding, and where a party has petitioned for allotment or a partition sale, may the court order allotment or, if it determines allotment is not practicable, a sale. Carroll County's circuit court notes that it uses commissioners in partition suits.
A different arrangement sometimes gets confused with this one: land held by one person for life and by another afterward, one owner after the other rather than side by side. That is a life estate, and its rules are separate.
Selling a family tract that several heirs own together?
Send the address or tax map number and the owners' names as the deed shows them, and Lowell will talk through how shared ownership bears on listing the tract and what the owners settle with an attorney first. No cost, no obligation.
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Questions about this term
If two people own land as joint tenants and one dies, does the other get it all?
Not automatically in Virginia. A deceased joint tenant's share passes to heirs, by will, or to the personal representative as if the owners had been tenants in common, unless the instrument manifestly shows the survivors were meant to take it. Titling that adds "with survivorship" or equivalent language is presumed to create that right. An attorney reads the actual deed.
Does a partition suit end with the land being sold?
Not necessarily. Virginia's partition statute directs the court to order partition in kind when the property is susceptible to a practicable division, and before the court may allot or sell an undivided interest it must first determine that partition in kind cannot be practicably made. Whether a given tract can be divided is the court's finding, and an attorney advises each owner.
Where this page's facts come from
Every rule, office and figure above traces to one of these. Rules change; check the office before you act on one.
- Va. Code 55.1-134: survivorship between joint tenants abolished, with exceptions Code of Virginia
- Va. Code 55.1-135: property titled jointly, with survivorship, or to spouses Code of Virginia
- Va. Code 8.01-81: who may compel partition; partition in kind Code of Virginia
- Va. Code 8.01-83: allotment or sale in a partition action Code of Virginia
- Circuit Court Carroll County, Virginia