Can Someone With a Tenancy in Common Sell Their Portion?

Tenancy in common is a form of real property ownership. Each person owns an undivided portion of the land. Ownership occurs either voluntarily or involuntarily. It is not to be confused with joint tenancy with right of survivorship or tenancy by the entirety which only applies to husband and wife. A tenant in common is able to sell his portion of the property. That right, however, has practical limitations.

A deed with two or more individuals who are not husband and wife listed as the grantees, or buyers, creates tenants in common. The deed can specify percentage of ownership for each tenant. If it does not, the law presumes equal ownership. Heirs to real estate involuntarily become tenants in common in equal shares unless the deceased's will or state law indicates a different result.

A person with ownership as tenancy in common puts his partial interest up for sale. The same rules apply as if he owned the entire interest. He locates a buyer, executes a written contract and then deeds over the undivided interest. The question is whether a buyer will pay fair market value, considering the problems he inherits. An owner as tenancy in common cannot develop the property or make any changes without permission of the other owners. This limits the value of the share and makes its sale more difficult.

A tenant in common has the right to petition the court for a forced sale of the property. Sale is usually by public auction to the highest bidder. The sale involves the whole property, not just the undivided interest on one tenant. The other tenants possess the right to object to a sale. Normally this occurs when they believe a forced sale will yield a below-market value result or they do not want to sell. In the latter case, they ask the court to partition the land.

Partition is a court ordered division of land. It can only occur if it is possible to fairly divide the property so each tenant receives a parcel of equal value, not a parcel of equal size. The court relies upon a surveyor and real estate appraiser. Once the property is partitioned, each tenant receives a deed. Then each party is free to sell his share as the tenancy in common has been dissolved.