[WSBARP] Joint Tenancy with Rights of Survivorship

[Eric Nelsen]

For what it's worth, I think you're right, I haven't found any Washington case law that addresses the issue, and the cases make clear that Washington's JTWROS statute is peculiar and not readily comparable to any other state's JT rules.

Seems to me our cases regarding severance of the ROS all have to do with transfers or attempted/contemplated transfers of a fee interest--whether it's via a community property agreement, or a contract to sell the property. I can't think of a case in Washington where ROS is severed by a transfer of less than a fee interest, like a lease or perhaps a deed of trust. Maybe creation of a life estate would sever ROS, but I think that's a special case that does involve splitting the fee interest in some way. I wonder if one JT's attempted grant of an easement would sever.

Approached the other direction--what happens to the lease when the lessor JT dies? Since the lessor JT's fee interest "vanishes" at death, does the lease automatically terminate, analogous to a leasehold tenancy from a life-estate lessor? Or does the lease attorn to the survivor? I don't think attornment would be a fair result for the survivor, who never agreed to subject their ownership and possessory interest to a tenant. Yet, to hold that the lease survives would effectively cause the deceased's JT interest to linger after death, until the lease terminates--and that result sounds a lot like "a lease by one JT severs the ROS."

All purely speculative of course, since I don't think we have any binding guidance from the appellate courts.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040




From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Marcus Fry
Sent: Tuesday, September 01, 2015 7:28 AM
To: 'wsbarp at lists.wsbarppt.com'
Subject: [WSBARP] Joint Tenancy with Rights of Survivorship

Does a lease by one JTWROS of the real property to a third party convert the tenancy to a tenancy in common?  I haven't found any WA case law on this pt.  CA court decision says yes, but a Cal Law review says majority of states say the opposite.  WA appears to be silent.

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
P.O. Box 1689
Yakima, Washington  98907
Telephone:  (509) 248-7220
Facsimile:  (509) 575-1883

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