Ark. Code Ann. § 18-12-603 (2020)
Grants to two or more as tenancy in common
Every interest in real estate granted or devised to two (2) or more persons, other than executors and trustees as such, shall be in tenancy in common unless expressly declared in the grant or devise to be a joint tenancy.
History. Rev. Stat., ch. 31, § 9; C. & M. Dig., § 1503; Pope's Dig., § 1812; A.S.A. 1947, § 50-411.
Research References
Ark. L. Notes.
Joel Hutcheson, Say What You Mean! How Arkansas Courts Are Contradicting the Default Rule of Tenancy in Common, 71 Ark. L. Notes 22 (2019).
Ark. L. Rev.
Gift and Estate Tax Consequences of Arkansas Cotenancies, 7 Ark. L. Rev. 237.
Recent Developments: Property: Effect of Illegal Marriage on Purported Tenancy by Entirety, 32 Ark. L. Rev. 823.
Case Notes
Children as Cotenants.
Where a testator devises land to his children, they become tenants in common. Lester v. Kirtley, 83 Ark. 554, 104 S.W. 213 (1907).
When a father died intestate as the owner of the lands, the title descended to his five children who became cotenants, and the mere lapse of time did not dissolve the cotenancy. Griffin v. Solomon, 235 Ark. 909, 362 S.W.2d 707 (1962).
Devise to children and their bodily heirs held to create fee tails in common with contingent remainder in bodily heirs. Mitchell v. Mitchell, 263 Ark. 365, 565 S.W.2d 29 (1978).
Joint Tenancy.
This section does not prohibit a joint tenancy; it merely provides for a construction against joint tenancy if the intention to create it is not clear. Ferrell v. Holland, 205 Ark. 523, 169 S.W.2d 643 (1943); Mitchell v. Mitchell, 263 Ark. 365, 565 S.W.2d 29 (1978).
Trial court's reliance upon this section was unnecessary where the deed at issue was clear and unambiguous in creating a joint tenancy with right of survivorship. Tripp v. Miller, 82 Ark. App. 236, 105 S.W.3d 804 (2003).
—Tenancy by Entirety.
Where a conveyance is to a husband and wife, they take an estate of entirety, and survivorship still obtains. Robinson v. Eagle, 29 Ark. 202 (1874); Branch v. Polk, 61 Ark. 388, 33 S.W. 424 (1895); Simpson v. Biffle, 63 Ark. 289, 38 S.W. 345 (1896); Davies v. Johnson, 124 Ark. 390, 187 S.W. 323 (1916).
Although defendant and deceased had been bigamously married, a deed which identified them as “husband and wife” and described their interest as that of “tenants by entirety” succeeded in meeting the requirements of this section for a joint tenancy. Wood v. Wood, 264 Ark. 304, 571 S.W.2d 84 (1978).
Deeds to man and wife created no right of survivorship, which would have existed in a tenancy by the entirety, where the persons named as grantees were not, in fact, married, and no words otherwise expressed a right of survivorship. Smith v. Stewart, 268 Ark. 766, 596 S.W.2d 346, aff'd, 269 Ark. 363, 601 S.W.2d 837 (1980).
Where the relevant language of an instrument granting title clearly separated the parties into four groups, including two married couples and then stated that the grantees took as tenants in common, each of the four groups had an undivided one-fourth interest in the land conveyed, but the married couples held their interests by the entirety; this section could only control, resulting in tenancies in common, if the grantor had not granted the two married couples their interest by the entirety. Shinn v. Shinn, 274 Ark. 237, 623 S.W.2d 526 (1981).
Tenancy in Common.
The language of a deed from a mother to her three children, which conveyed the property “jointly and severally, and unto their heirs, assigns and successors forever,” was insufficient to overcome the statutory presumption of a tenancy in common. James v. Taylor, 62 Ark. App. 130, 969 S.W.2d 672 (1998).
Cited: United States v. 48.9 Acres of Land, 85 F. Supp. 133 (W.D. Ark. 1949); Metropolitan Life Ins. Co. v. Gardner, 245 Ark. 742, 434 S.W.2d 266 (1968).