You’re staring at an MBE fact pattern about three siblings who inherited property from their mother. One dies. The question asks who owns what now. Your brain freezes. Was this joint tenancy or tenancy in common? Does the dead sibling’s share go to their spouse or the surviving siblings? You know this matters, but the rules are blurring together.

Let’s fix that. Cotenancy questions appear on nearly every MBE, and the examiners love testing the distinction between joint tenancy and tenancy in common because one tiny word in the conveyance changes everything about what happens at death.

The Default Rule: Tenancy in Common

Here’s what you need to burn into your memory: tenancy in common is the default concurrent estate in every jurisdiction tested on the MBE. If a conveyance transfers property to two or more people and doesn’t explicitly create a joint tenancy, you have a tenancy in common.

A tenancy in common gives each cotenant an undivided interest in the property with the right to possess the whole. The key characteristic? No right of survivorship. When a tenant in common dies, their interest passes through their will or by intestacy to their heirs. It doesn’t automatically go to the other cotenants.

Example: “O conveys Blackacre to A and B.” That’s a tenancy in common. If A dies, A’s interest goes to whoever A named in their will (or A’s heirs if A died intestate). B doesn’t automatically get A’s share just because they were cotenants.

Tenants in common can hold unequal shares. “O conveys to A and B, with A receiving a two-thirds interest and B receiving a one-third interest” creates a valid tenancy in common with specified shares. Each interest is freely alienable, devisable, and descendible. A can sell her two-thirds interest to a stranger without B’s permission, and that stranger becomes a tenant in common with B.

Joint Tenancy: The Four Unities and Right of Survivorship

Joint tenancy is the exception, not the rule. It requires both clear intent and satisfaction of the four unities. This is where MBE questions get tricky.

The defining feature of joint tenancy is the right of survivorship. When a joint tenant dies, their interest vanishes and the surviving joint tenant(s) automatically own the whole property by operation of law. The deceased joint tenant’s will is irrelevant. Their heirs get nothing. Survivorship trumps everything.

But creating a joint tenancy requires more than just wanting survivorship. You need the four unities:

  1. Time: All joint tenants must acquire their interests at the same time
  2. Title: All joint tenants must acquire their interests in the same instrument (same deed or will)
  3. Interest: All joint tenants must have equal shares and the same type of interest
  4. Possession: All joint tenants must have the right to possess the whole property

The conveyance must also include clear language expressing the intent to create a joint tenancy with survivorship rights. “O conveys to A and B as joint tenants with right of survivorship” works. “O conveys to A and B jointly” probably doesn’t—it’s ambiguous, so the default tenancy in common applies.

Here’s a common MBE trap: O owns Blackacre in fee simple and wants to create a joint tenancy between herself and her daughter. “O conveys to O and A as joint tenants” fails in most jurisdictions because O didn’t acquire her interest at the same time or in the same instrument as A (O already owned it). The time and title unities are broken. The old common law solution? A straw man conveyance: O conveys to X, then X immediately reconveys to O and A as joint tenants. Modern jurisdictions increasingly allow direct creation, but the MBE tests the traditional rule unless the fact pattern tells you otherwise.

How Joint Tenancy Gets Destroyed: Severance

Joint tenancy is fragile. Several acts can sever it, converting the joint tenancy into a tenancy in common and destroying the right of survivorship.

Inter vivos conveyance is the most tested severance method. If one joint tenant conveys their interest to a third party, that severs the joint tenancy as to the conveyed share.

Example: A, B, and C own Blackacre as joint tenants. A sells her interest to D. Now D is a tenant in common with B and C, who remain joint tenants with each other. If B dies, C gets B’s share through survivorship. D gets nothing from B’s death. But D owns a one-third interest as a tenant in common that D can devise by will.

Notice what severance does: it only affects the transferred interest. The remaining original joint tenants still hold in joint tenancy with each other.

Mortgages create a circuit split you need to know. In lien theory states (the majority), a mortgage is just a lien on the property and doesn’t sever the joint tenancy. In title theory states, the mortgage transfers title to the mortgagee and severs the joint tenancy. The MBE will tell you which rule applies, but you need to know both exist.

Leases also split jurisdictions. Some courts hold that a lease by one joint tenant severs the joint tenancy; others hold it doesn’t. Again, the fact pattern will guide you, but the ambiguity itself is testable.

What doesn’t sever? A joint tenant’s will. You cannot devise a joint tenancy interest because at the moment of death, the interest evaporates. Survivorship happens simultaneously with death, so there’s nothing left to pass under the will.

Rights and Obligations Among Cotenants

Whether you have joint tenancy or tenancy in common, cotenants share certain rights and obligations. These rules apply to both forms of cotenancy.

Possession: Every cotenant has the right to possess the entire property. A cotenant in sole possession owes no rent to the other cotenants unless there’s been an ouster—an actual denial of access or assertion of exclusive ownership. Simply living in the property alone while the other cotenant chooses not to isn’t ouster.

Expenses: A cotenant who pays more than their proportionate share of necessary expenses (property taxes, mortgage payments, necessary repairs) has a right to contribution from the other cotenants. This right is proportionate to ownership shares.

Improvements: Here’s where cotenants get no contribution right. If you install a pool or renovate the kitchen, you can’t force your cotenants to chip in. However, you do get credit for the increased value at partition. The improving cotenant bears the risk that the improvements might not add equivalent value.

Waste: All cotenants have a duty not to commit waste. A cotenant who commits voluntary waste (affirmative damage), permissive waste (failure to maintain), or even ameliorative waste (changes that increase value but alter the property’s character) can be liable to the other cotenants.

Rents from third parties: If a cotenant leases the property to a third party, the other cotenants are entitled to their proportionate share of the rental income. You can’t pocket all the rent just because you arranged the lease.

Partition: The Nuclear Option

Here’s the escape hatch: any cotenant has an absolute right to judicial partition at any time. You cannot waive this right in advance (though you can agree to a limited time restriction).

Partition in kind (physical division of the property) is the preferred method where practical. The court divides the land into separate parcels matching each cotenant’s ownership percentage. A and B, equal tenants in common of a 10-acre tract, might each get 5 acres.

When physical division is impractical or would substantially diminish the property’s value, the court orders partition by sale. The property is sold, and the proceeds are divided according to ownership shares. This is common with single-family homes where you can’t exactly saw the house in half.

At partition, the court settles all accounts between cotenants: credits for improvements, reimbursement for expenses paid, offsets for waste committed, and adjustments for exclusive possession if there was an ouster.

Spotting the Issues on Test Day

MBE questions on cotenancy typically come in three flavors:

Flavor 1: Creation and classification. You’ll get a conveyance and need to identify whether it created joint tenancy or tenancy in common. Look for survivorship language and check the four unities. Remember the default is tenancy in common.

Flavor 2: Severance. A joint tenant does something—sells, mortgages, leases, or dies. You need to determine whether the joint tenancy survives and who owns what. Death never severs (survivorship operates instead). Inter vivos conveyance always severs as to the transferred interest.

Flavor 3: Rights and obligations. One cotenant pays all the taxes, makes improvements, or refuses to let the other cotenant onto the property. You need to determine contribution rights, ouster, and potential waste claims.

What to Memorize for Maximum Points

Lock these rules down:

The examiners will bury these rules in long fact patterns with multiple transfers, deaths, and conveyances. Your job is to work through each transaction chronologically, applying the severance and survivorship rules at each step. Don’t try to jump to the end. Track who owns what after each event.

If you want all 111 Real Property rules organized for active recall—including the complete cotenancy framework with all the exceptions and minority rules—FlashTables covers this in a structured two-column format that makes memorization dramatically faster than reading through your outline for the fifth time. The tables are designed for exactly this kind of rule-dense testing where one missed element tanks your analysis. Check out the Real Property table at getflashtables.com/#pricing.

Now go drill some practice questions. You’ve got this.