Tenants in Common with a Right of Survivorship: A Third Alternative in South Carolina
Tenants in Common with a Right of Survivorship: A Third Alternative in South Carolina
If you’ve bought property in South Carolina with another person or multiple people, then you might be familiar with the terms “tenants in common” and “joint tenants with rights of survivorship.” These are the two standard alternatives that determine the way multiple parties can own real property together in the state.
But did you know that in South Carolina there’s a third option? It’s so rarely used that not even the SC Court of Appeals knew about it when it heard Smith v Cutler, which then went to the SC Supreme Court in 2005. In its opinion (here), the SC Supreme Court goes into detail about this third option, called “tenants in common with a right of survivorship,” and how it came to be.
Tenants in common with a right of survivorship has elements of both tenants in common and joint tenants with right of survivorship. We’ll look at the latter two (the most common) first, then get into Smith v Cutler.
“Tenants in Common” versus “Joint Tenants with the Right of Survivorship”
What’s the difference between tenants in common and joint tenants with a right of survivorship? In South Carolina, this is what it means to own property with another party or parties:
As tenants in common:
- Each party owns a share of the property, and that share can be unequal
- When one party dies, their share of the property goes to an heir as directed by their will (or according to state law, if they die intestate)
- A party may sell or convey their share of the property without permission of the other party or parties
- The property is subject to partition
As joint tenants with rights of survivorship:
- All parties own the whole property together (i.e., the property is not divided into shares)
- When one party dies, their interest passes automatically to the other party or parties (without going through probate), and the property remains undivided and intact
- A party may sell or convey their interest in the property at any time before their death, but at death their interest will still pass to the other party or parties
- The property is subject to partition
Married couples in South Carolina most commonly own property together as joint tenants with rights of survivorship. The advantage is that when one spouse dies, the surviving spouse automatically takes ownership of the property without it being subject to probate. When a couple that owns property together as joint tenants divorces, the ownership converts to a tenancy in common.
“Tenants in Common with a Right of Survivorship”
The third and less well-known option combines elements of both of the above. When parties own property together as tenants in common with a right of survivorship:
- Each party owns a share of the property, and that share can be unequal
- When one party dies, their interest passes automatically to the other party or parties (without going through probate), and the property remains undivided and intact
- Parties may not sell or convey their interest in the property without the consent of the other party or parties
- The property is not subject to partition
The last two points are what distinguish this type of ownership from the two above. It’s similar to “tenancy by the entirety” which is a way for multiple parties to own property together in some other states but not in South Carolina.
Smith v Cutler Reaffirms Tenancy in Common with a Right of Survivorship
As stated above, this third type of ownership is so rare in South Carolina that even the SC Court of Appeals didn’t seem to know about it. But the SC Supreme Court reaffirmed the validity of the tenancy in common with a right of survivorship in Smith v Cutler.
Ernest J. Smith, Sr. and Joanne Rucker Smith married in June 2000 when he was in his 80s and she was in her 70s. Joanne owned a parcel of land in its entirety until she deeded a 50% share to her husband in August 2000. She wanted to ensure that if she died before him, he would inherit the property.
The language in the deed stated that the property was to be owned “for and during their joint lives and upon the death of either of them, then to the survivor of them, his or her heirs and assigns forever in fee simple.”
A few years later, family conflict led to the following legal action. Ernest J. Smith, Sr. became incapacitated and his son (the Respondent in this case), as personal representative of his father, brought a partition action to divide the property. If successful, the action would force the sale of the property that Joanne had owned most of her life and that had been her home since 1958. At the time the action was brought, Ernest Sr. and Joanne were still married and there was no evidence that they intended to divorce.
The case went to the master-in-equity who granted the Respondent’s motion for summary judgment allowing the partition, ruling that the deed was consistent with the laws of joint tenants with rights of survivorship. The SC Court of Appeals affirmed the decision.
Joanne’s personal representative, Verne E. Cutler (the Petitioner in this case), appealed, and the case went to the Supreme Court of South Carolina in 2005.
The SC Supreme Court’s Answer to Tenancy by the Entirety
The supreme court found in favor of the Petitioner, meaning that the partition action was denied, and the property would remain intact.
That’s because the deed did not contain language consistent with joint tenants with a right of survivorship. The language was consistent with tenancy in common with a right of survivorship, which the SC Supreme Court “created” (in its own words) in 1953 in the case Davis v Davis (find the opinion here). Property owned in this manner cannot be compelled to partition by the act of one owner – all owners must agree – and when a party dies their interest automatically goes to the survivor. This effectively allows married couples to own property together in a manner similar to tenancy by the entirety which is otherwise not recognized under South Carolina law.
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