O.C.G.A. § 44-6-120 (2019)

Annotations

Cross references. - Creation of tenancy in common upon termination of condominium, § 44-3-98. Law reviews. - For article discussing joint ownership of assets and severance of such ownership, see 14 Ga. St. B.J. 14 (1977). For

annual survey article on real property law, see 52 Mercer L. Rev. 383 (2000). For comment on Eppes v. Locklin, 222 Ga. 86, 149 S.E.2d 148 (1966), appearing below, see 1 Ga. L. Rev. 331 (1967).

JUDICIAL DECISIONS Title of tenants in common is technically several rather than joint. Hasty v. Wilson, 223 Ga. 739, 158 S.E.2d 915 (1967). In the event of a foreclosure on the deed to secure debt the defendant and his wife would become tenants in common of the house and property. As tenants in common, the interest of the defendant and his wife is several and not joint. The interest of a husband may be separated from that of his wife, and he holds that interest in his own name and in his own right. Straughair v.

Palmieri, 31 Bankr. 111 (Bankr. N.D. Ga. 1983). Confidential relationship between tenants. - Under Georgia law, tenants in common are in a confidential relationship with each other as to the common estate. However, no Georgia case extends this relationship to encompass the circumstance of one tenant purchasing another cotenant’s interest. McLendon v. Georgia Kaolin Co., 782 F. Supp. 1548 (M.D. Ga. 1992). Tenancy in common in personalty permis-

sible. - While the technical expression, ‘‘tenants in common,’’ applies to owners of realty, still when several own personalty in common, the character of the ownership is the same; and while there is unity of possession they hold under distinct and several titles. Deal v. State, 14 Ga. App. 121, 80 S.E. 537 (1914). Tenancy in common may be created in a bank check. English v. Poole, 31 Ga. App. 581, 121 S.E. 589 (1924). Tenancy in common is a type of ownership which may exist in personal as well as real property. Morden v. Mullins, 115 Ga. App. 92, 153 S.E.2d 629 (1967). Equality of shares. - When deed conveyed the premises in dispute to the plaintiff and the defendant jointly, they were tenants in common and, nothing else appearing, held equal shares in the property. Mills v. Williams, 208 Ga. 425, 67 S.E.2d 212 (1951). See Shiels v. Stark, 14 Ga. 429 (1854); Baker v. Shepherd, 37 Ga. 12 (1867). Unequal shares must be shown by clear and convincing evidence. - Because of the presumption that tenants in common hold equal shares in property jointly held between them, in order for plaintiff to show that plaintiff and plaintiff ’s co-tenant held unequal shares in the property, plaintiff was required to bring forth proof of such that was clear and convincing. Burt v. Skrzyniarz, 272 Ga. 35, 526 S.E.2d 848 (2000). Creation of tenancy in common. - Tenancy in common is created wherever two or more persons, from any cause, are entitled to the possession simultaneously of any property in this state. Although it is true that tenants in common may have unequal shares of the property, yet each one must have a share thereof. Anderson v. Lucky, 18 Ga. App. 479, 89 S.E. 631 (1916). ‘‘And/or’’ in a deed passes a tenancy in common. Straughair v. Palmieri, 31 Bankr. 111 (Bankr. N.D. Ga. 1983). An undivided interest in real property may be created into as many fractional shares of the whole property as the grantor desires, because it is a fractional ownership interest in the whole and not a division of the land into discrete parts. Glover v. Ware, 236 Ga. App. 40, 510 S.E.2d 895 (1999). An undivided interest in a tenancy in common was just such ownership interest as would result from sale of the defendant’s

interest in property bought prior to divorce because any purchaser would acquire only defendant’s undivided one-half interest in a tenancy in common and would stand in defendant’s shoes. Glover v. Ware, 236 Ga. App. 40, 510 S.E.2d 895 (1999). Devisees take as tenants in common. - When a deed conveyed an immediate estate, with present enjoyment, to a woman and her children, the title vested in the woman and such children as she had in life, as tenants in common, and children thereafter born to her took no interest under such deed. Plant v. Plant, 122 Ga. 763, 50 S.E. 961 (1905); Powell v. James, 141 Ga. 793, 82 S.E. 232 (1914). Will giving property to testator’s daughter and to her children to the exclusion of all other persons whatever vested title in her and such children as were living at the death of the testator as tenants in common. Whitfield v. Means, 140 Ga. 430, 78 S.E. 1067 (1913). Deed conveyed the property to the wife and her children as tenants in common for her life with remainder to children. Hammock v. Martin, 147 Ga. 828, 95 S.E. 679 (1918). Tenancy created in livestock. - When a landlord furnishes livestock to a cropper, the increase of which is to be raised by the latter on shares and to be divided equally between the parties, their relation with reference thereto is that of owners or tenants in common, and not that of landlord and cropper. Ellis, McKinnon & Brown v. Hopps, 30 Ga. App. 453, 118 S.E. 583 (1923). Trustee and cestui que trust as tenants in common. - If a trustee acquires title to specific realty for the trustee’s individual use and also for the use of the trustee’s cestui que trust, the entire estate will be an estate in common, and the trustee and the cestui que trust will be tenants in common. Carmichael v. Citizens & S. Bank, 162 Ga. 735, 134 S.E. 771 (1926). Possession of land as notice of right and title. - Former Code 1933, § 85-1001 (see O.C.G.A. § 44-6-120) must be construed in connection with former Code 1933, § 85-408 (see O.C.G.A. § 44-5-169), relating to possession of land as notice of right and title. Wren v. Wren, 199 Ga. 851, 36 S.E.2d 77 (1945). Because the parties were co-tenants under

O.C.G.A. § 44-6-120, and one of the co-tenants was on notice as to the other co-tenant’s heirs’ adverse possession under O.C.G.A. § 44-6-123, which included conveying the timber on the land to a company, but failed to assert rights to the property in the prescribed time, the heirs established prescriptive title in the land. Williams v. Screven Wood Co., 279 Ga. 609, 619 S.E.2d 641 (2005). Compensation for fire loss. - In action to recover on insurance policy for fire loss on house, if insured as a tenant in common with his ex-wife had right to full use and possession of the entire property, his ex-wife’s surrender of her similar right to full use and possession did not give him any greater right to use and possession than he already had; therefore, insured was not entitled to any compensation for his ex-wife’s right to use and possession. Allstate Ins. Co. v. Ammons, 163 Ga. App. 385, 294 S.E.2d 610 (1982).

Cited in Deal v. State, 14 Ga. App. 121, 80 S.E. 537 (1914); Pullen v. Johnson, 173 Ga. 581, 160 S.E. 785 (1931); Wallis v. Watson, 184 Ga. 38, 190 S.E. 360 (1937); Lee v. State, 62 Ga. App. 556, 8 S.E.2d 706 (1940); Zeagler v. Zeagler, 190 Ga. 220, 9 S.E.2d 263 (1940); Lewis v. Patterson, 191 Ga. 348, 12 S.E.2d 593 (1940); Lee v. State, 64 Ga. App. 290, 13 S.E.2d 79 (1941); Fountain v. Davis, 71 Ga. App. 1, 29 S.E.2d 798 (1944); Locklin v. Locklin, 207 Ga. 134, 60 S.E.2d 362 (1950); Varellas v. Varellas, 221 Ga. 474, 145 S.E.2d 514 (1965); Eppes v. Locklin, 222 Ga. 86, 149 S.E.2d 148 (1966); United States v. Lowe, 268 F. Supp. 190 (N.D. Ga. 1966); White v. Howell, 117 Ga. App. 778, 161 S.E.2d 892 (1968); Savannah Bank & Trust Co. v. Keane, 126 Ga. App. 53, 189 S.E.2d 702 (1972); Ray v. Ray, 73 Bankr. 544 (Bankr. M.D. Ga. 1987); Effingham County Bd. of Tax Assessors v. Samwilka, Inc., 278 Ga. App. 521, 629 S.E.2d 501 (2006).

OPINIONS OF THE ATTORNEY GENERAL ‘‘And/or’’ in deed passes tenancy in common. - Clause ‘‘and/or her daughter’’ in a deed would be interpreted to pass a free title

to the taxpayer and the taxpayer’s daughter as equal tenants in common. 1965-66 Op. Att’y Gen. No. 66-148.

RESEARCH REFERENCES Am. Jur. 2d. - 20 Am. Jur. 2d, Cotenancy and Joint Ownership, § 1 et seq. 28 Am. Jur. 2d, Estates, § 2. C.J.S. - 26A C.J.S., Deeds, §§ 262, 267, 277. 41 C.J.S., Husband and Wife, § 39, 40. 48A C.J.S., Joint Tenancy, §§ 2 et seq., 39. 86 C.J.S., Tenancy in Common, §§ 1 et seq., 22, 51. ALR. - Effect on joint estate, community estate, or estate by entireties, of death of both tenants in same disaster, 18 ALR 105. Lease to two or more as creating a tenancy in common or a joint tenancy, 113 ALR 573. Presumption and proof as to shares of

respective grantees or transferees in conveyance or transfer to two or more persons as tenants in common, silent in that regard, 156 ALR 515. Rights and remedies as between cotenants of cemetery lots respecting burials therein, 10 ALR2d 219. Maintenance of replevin or similar possessory remedy by cotenant, or security transaction creditor thereof, against other cotenants, 93 ALR2d 358. Larceny: cotenant taking cotenancy property, 17 ALR3d 1394.