Colorado § 38-31-101 - Joint tenancy expressed in instrument - when.

§ 38-31-101. Joint tenancy expressed in instrument - when.

(1) Except as otherwise provided in subsection (3) of this section and in section 38-31-201, no conveyance or devise of real property to two or more natural persons shall create an estate in joint tenancy in real property unless, in the instrument conveying the real property or in the will devising the real property, it is declared that the real property is conveyed or devised in joint tenancy or to such natural persons as joint tenants. The abbreviation "JTWROS" and the phrase "as joint tenants with right of survivorship" or "in joint tenancy with right of survivorship" shall have the same meaning as the phrases "in joint tenancy" and "as joint tenants". Any grantor in any such instrument of conveyance may also be one of the grantees therein.

(1.5) (a) The doctrine of the four unities of time, title, interest, and possession is continued as part of the law of this state subject to subsections (1), (3), (4), (5), (6), and (7) of this section and paragraph (b) of this subsection (1.5).

(b) Subsections (1), (3), (4), (5), (6), and (7) of this section are intended and shall be construed to clarify, supplement, and, limited to their express terms, modify the doctrine of the four unities.

(c) For purposes of this subsection (1.5), the "doctrine of the four unities of time, title, interest, and possession" means the common law doctrine that a joint tenancy is created by conveyance or devise of real property to two or more persons at the same time of the same title to the same interest with the same right of possession and includes the right of survivorship.

(2) (Deleted by amendment, L. 2006, p. 240, § 1, effective July 1, 2006.)

(3) A conveyance or devise to two or more personal representatives, trustees, or other fiduciaries shall be presumed to create an estate in joint tenancy in real property and not a tenancy in common.

(4) An estate in joint tenancy in real property shall only be created in natural persons; except that this limitation shall not apply to a conveyance or devise of real property to two or more personal representatives, trustees, or other fiduciaries. Any conveyance or devise of real property to two or more persons that does not create or is not presumed to create an estate in joint tenancy in the manner described in this section shall be a conveyance or devise in tenancy in common or to tenants in common.

(5) (a) Except as provided in sections 38-35-118 and 38-41-202 (4), a joint tenant may sever the joint tenancy between himself or herself and all remaining joint tenants by unilaterally executing and recording an instrument conveying his or her interest in real property to himself or herself as a tenant in common. The joint tenancy shall be severed upon recording such instrument. If there are two or more remaining joint tenants, they shall continue to be joint tenants as among themselves.

(b) Filing a petition in bankruptcy by a joint tenant shall not sever a joint tenancy.

(6) (a) The interests in a joint tenancy may be equal or unequal. The interests in a joint tenancy are presumed to be equal and such presumption is:

(I) Conclusive as to all persons who obtain an interest in property held in joint tenancy when such persons are without notice of unequal interests and have relied on an instrument recorded pursuant to section 38-35-109; and

(II) Rebuttable for all other persons.

(b) This subsection (6) does not bar claims for equitable relief as among joint tenants, including but not limited to partition and accounting.

(c) Upon the death of a joint tenant, the deceased joint tenant's interest is terminated. In the case of one surviving joint tenant, his or her interest in the property shall continue free of the deceased joint tenant's interest. In the case of two or more surviving joint tenants, their interests shall continue in proportion to their respective interests at the time the joint tenancy was created.

(d) For purposes of the "Colorado Medical Assistance Act", articles 4, 5, and 6 of title 25.5, C.R.S., a joint tenancy shall be deemed to be a joint tenancy with equal interests among the joint tenants regardless of the language in the deed or other instrument creating the joint tenancy.

(7) Nothing in this section shall be deemed to abrogate any existing case law to the extent that such case law establishes other means of severing a joint tenancy.

Source: R.S. p. 106, § 3. G.L. § 162. G.S. § 200. R.S. 08: § 671. C.L. § 4872. CSA: C. 40, § 4. L. 39: p. 285, § 1. CRS 53: § 118-2-1. L. 55: p. 720, § 1. C.R.S. 1963: § 118-2-1. L. 96: Entire section amended, p. 661, § 15, effective July 1. L. 2002: Entire section amended, p. 1361, § 14, effective July 1. L. 2003: (1) amended, p. 2002, § 67, effective May 22. L. 2006: Entire article amended, p. 240, § 1, effective July 1. L. 2008: (1.5), (5), (6), and (7) added, p. 681, § 1, effective April 25.

Cross references: For tenancy in common of mines, see article 44 of title 34.

ANNOTATION

Law reviews. For article, "Five New Real Estate Standards for Denver", see 26 Dicta 131 (1949). For article, "Curative Statutes of Colorado Respecting Titles to Real Estate", see 26 Dicta 281 (1949). For article, "Joint Tenancy in Colorado", see 26 Dicta 313 (1949). For article, "Signatures on Documents Affecting Title to Colorado Real Property — Part II", see 12 Colo. Law. 258 (1983). For article, "Commercial Condominium Association Considerations", see 12 Colo. Law. 1090 (1983). For article, "Tenancy by the Entirety in Colorado", see 13 Colo. Law. 230 (1984). For article, "Title to Colorado Real Property Held in Trust", see 31 Colo. Law. 85 (May 2002). For article, "Evolution of Joint Tenancy Law in Colorado: Changes to CRS § 38-31-101", see 38 Colo. Law. 65 (Apr. 2009).

Joint tenancy in Colorado is strictly limited and its very existence circumscribed by statute. Smith v. Greenburg, 121 Colo. 417, 218 P.2d 514 (1950).

Legislative policy is to prefer tenancies in common at the expense of joint tenancies. Estate of Kwatkowski, 94 Colo. 222, 29 P.2d 639 (1934).

Joint tenancy and tenancy in common distinguished. The major distinguishing characteristic of joint tenancy, as opposed to tenancy in common, is right of survivorship in each of the cotenants. Bradley v. Mann, 34 Colo. App. 135, 525 P.2d 492 (1974), aff'd, 188 Colo. 392, 535 P.2d 213 (1975).

A court must presume the tenancies are not joint till something is shown otherwise. Miller v. Buyer, 82 Colo. 474, 261 P. 659 (1927).

This section raises a presumption against the creation of joint tenancies, so that if the parties to a partnership had intended a joint tenancy to apply only to one-half of the partnership property, or to a particular one-half interest in it, they could and—because of this section—should have specifically so stated. In re Sullivan's Estate, 121 Colo. 494, 218 P.2d 1064 (1950).

In the absence of an affirmative declaration that the estate devised is in joint tenancy, an estate in tenancy in common will be devised, unless it clearly and explicitly appears from the language employed that the testator understood the nature and incidents of the different estates and intended to create a joint tenancy. Estate of Kwatkowski, 94 Colo. 222, 29 P.2d 639 (1934); Chilson v. Reed, 154 Colo. 149, 389 P.2d 87 (1964).

Mere use of word "jointly" is insufficient for the purpose of expressing a joint tenancy. Estate of Kwatkowski, 94 Colo. 222, 29 P.2d 639 (1934).

Language creates joint tenancy. The statement in a corporate stock certificate that parties "as joint tenants with right of survivorship and not as tenants in common" are the owners of the stock, amply proclaims a joint tenancy, and upon its face the certificate must be considered as accomplishing that result. Eisenhardt v. Lowell, 105 Colo. 417, 98 P.2d 1001 (1940).

Rights vest at creation of joint tenancy. In real property, rights under a joint tenancy are fixed and vested in the joint tenants at the time of the creation of the joint tenancy; and once a joint tenancy is created, the donor no longer has the power to exercise absolute dominion over the property. He may not treat the whole property as his own, he cannot convey to a third party the interest he created in the joint tenant, and while he may occupy the whole property, he cannot exclude the other joint tenants from their right to use and enjoy the property, and he is liable to them for any depleting use he may make of the land. Estate of Lee v. Graber, 170 Colo. 419, 462 P.2d 492 (1969).

Grantees under a joint tenancy deed are presumed to own equal shares in the property conveyed, but parol evidence is admissible to overcome the presumption. Duston v. Duston, 31 Colo. App. 147, 498 P.2d 1174 (1972).

Action by joint tenants inconsistent with survivorship right destroys tenancy. In ascertaining whether a joint tenancy has been destroyed, resulting in a tenancy in common, this state has recently adopted the modern test which focuses on the intent of the parties with regard to the right of survivorship characteristic. Actions by the joint tenants which are inconsistent with the right of survivorship operate to terminate the joint tenancy. Mangus v. Miller, 35 Colo. App. 115, 532 P.2d 368 (1974).

Action against joint tenancy. Where several parties are defendants in a suit to quiet title, in order that they may be sued jointly, it must affirmatively appear that they are joint tenants in whatever interest they claim to have. Miller v. Buyer, 82 Colo. 474, 261 P. 659 (1927).

Gift of joint interest is irrevocable. A gift of a joint interest in real property is complete, perfect, and irrevocable. Estate of Lee v. Graber, 170 Colo. 419, 462 P.2d 492 (1969).

A joint tenant may sever a joint tenancy by conveying the property to himself or herself as a tenant in common without the need for an intermediary strawman. Taylor v. Canterbury, 92 P.3d 961 (Colo. 2004).

Debtor's joint tenancy interest in property terminated upon his death. Because a trustee stands in the shoes of the joint tenant, the trustee's interest in the property also terminated upon the debtor's death. In re Chernushin, 584 B.R. 567 (D. Colo.), aff'd, 911 F.3d 1265 (10th Cir. 2018).

Applied in Liden's Estate v. Foster, 103 Colo. 58, 82 P.2d 775 (1938); Liebhardt v. Avison, 123 Colo. 338, 229 P.2d 993 (1951); Franzen v. Zimmerman, 127 Colo. 381, 256 P.2d 897 (1953).