One Word in a 1998 Deed: "Jointly" and the Half-Interest That Was Already Sold
In 1998 Arthur and Beatrice, husband and wife, received a deed conveying Blackacre "to Arthur and Beatrice, jointly." Arthur has two children from a prior marriage. In 2015 both spouses signed a mortgage on Blackacre, which was recorded that week. In 2019 Arthur alone signed and recorded a deed conveying "all of my undivided one-half interest" to his daughter Dana. Arthur died in 2024; his will, probated in Jefferson County, leaves his entire estate to Dana. Beatrice has now listed Blackacre through a broker, stating she owns 100 percent "because we were joint tenants and it passed to me automatically." A title search shows no survivorship language anywhere in the chain of title.
1. How was Blackacre held, and who owns what after Arthur's death?
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No survivorship was created. Alabama presumes a tenancy in common whenever title is taken by two or more persons unless the instrument expressly declares a right of survivorship. The word "jointly" is not such a declaration. Arthur and Beatrice therefore each owned an undivided one-half as tenants in common, and Beatrice's belief that the whole property "passed automatically" is wrong.
The 2019 deed already severed Arthur's half. A tenant in common may convey his undivided interest without the other cotenant's consent. Arthur's recorded deed to Dana transferred his one-half in 2019, five years before he died. At death Arthur owned nothing in Blackacre, so the will's devise to Dana has nothing to operate on as to this parcel (the doctrine of ademption applies to specific devises; the residuary clause cannot reach property he no longer owned).
Resulting ownership:
- Beatrice: undivided one-half.
- Dana: undivided one-half, by the 2019 deed, not by the will.
- The 2015 mortgage, validly executed and recorded by both, remains a lien encumbering the entire fee. Dana took her half subject to it; a foreclosure would extinguish both halves.
Bottom line: Beatrice owns 50 percent, not 100 percent, and she cannot alone convey marketable title.
2. Beatrice insists the licensee take the listing at 100 percent ownership and says "the title company will sort it out." What are the licensee's obligations?
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Do not take the listing as presented. Signing a listing agreement with Beatrice as sole owner of the entire fee, when the recorded chain shows a tenant in common and a 2019 conveyance of one-half to Dana, creates three problems:
- Authority: the broker would hold no agency over Dana's interest. Any buyer-produced contract could only be performed by Beatrice as to a half interest.
- Misrepresentation: marketing the property as solely owned, and stating that title "will be sorted out," is an affirmative misstatement about a recorded fact. The licensee is charged with constructive notice of everything in the deed records.
- Earnest money and liability: a failed closing on a contract the seller could not perform exposes the seller and arguably the broker to a claim for damages or return of the deposit.
Proper handling.
- Order a title commitment/deed search before listing; confirm record ownership in writing.
- Offer a listing only if both cotenants sign, or list only Beatrice's undivided one-half interest, disclosed plainly as such.
- Tell Beatrice her remedies are a deed from Dana or a partition action, and refer her to counsel - the licensee does not resolve cotenancy disputes.
- Disclose the tenancy-in-common status to every prospective buyer in writing, and confirm any mortgage payoff and lien release before closing.
Bottom line: the listing must accurately describe what is for sale; here, either both signatures or a half-interest listing with full disclosure.
3. A cash buyer offers full price on a contract signed only by Beatrice, and asks whether he will get a clean owner's title policy. How should the licensee answer, and what is the realistic path to closing?
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The honest answer is no. A title insurer will raise two exceptions or requirements immediately: the 1998 deed creating a tenancy in common and the 2019 recorded deed to Dana. The company cannot insure the full fee when a recorded owner of an undivided half has not signed the deed.
A recorded deed is constructive notice. Because Dana's 2019 deed is in the chain, a purchaser from Beatrice alone is charged with knowledge of it and cannot claim to be a purchaser for value without notice. Recording here hurts the buyer rather than helping him; the recording system gives notice to the world.
Realistic paths to a marketable closing:
- Cleanest: obtain a deed executed by both Beatrice and Dana, with both joining to release the 2015 mortgage lien at payoff.
- Partition: if Dana refuses, a cotenant may bring a partition action; a court can order sale and division of proceeds, but this takes months and kills the current contract.
- Half-interest purchase: the buyer could purchase only Beatrice's half at a steeply discounted price and then negotiate or litigate with Dana - rarely what a residential buyer wants.
What the licensee does: refuse to represent that title is clean, disclose the cotenancy and mortgage lien to the buyer in writing, put the matter in the contract as a title contingency, and coordinate with the closing attorney. Do not accept the buyer's deposit on a contract the seller cannot deliver.