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    Joint Cotenant Could Sever Right of Survivorship  

    Attorneydiction.com,- A land dispute between a Charleston County man and his late domestic partner’s daughter presented a fact pattern fit for a property law exam question—real “who owns Blackacre?” type stuff. And it presented a novel question for South Carolina’s Court of Appeals, which decided that a joint cotenant could convey her undivided interest in a jointly-owned property to a third party. 

    Bradford Q. Jeffcoat purchased real property in Charleston in 2000 and conveyed a one-half interest in it to Sandra Perkins in exchange for a mortgage. The deed stated Jeffcoat and Perkins held the property “jointly with right of survivorship, and not as tenants in common.” The two lived together on property until 2015, by which time Perkins had been suffering from advanced dementia for several years. 

    Perkins had previously appointed her daughter, Vanessa Williams, as her durable power of attorney and health care power of attorney. After assessing Perkins’ steadily declining condition, Williams moved her mother to Alabama in June 2015, and an Alabama probate court made her Perkins’ conservator and guardian. In that capacity, Williams executed a deed transferring Perkins’ one-half interest in the property to herself so as to preserve Perkins’ interest in the property. 

    Williams then sought the partition and sale of the property, and the case was referred to Charleston County master-in-equity Mikell R. Scarborough. After Perkins had passed away, Scarborough granted the motion, and Jeffcoat appealed. 

    Judge Bruce Williams, writing for a unanimous Court of Appeals in a July 14 opinion, concluded that the partition and sale were proper. Williams began by noting that South Carolina’s jurisprudence allows for the creation of common-law joint tenancies. (The main difference between joint tenants and tenants in common is that tenants in common can pass their interest in a property to their heirs when they die. If a joint tenant dies, their interest in the property gets transferred to the surviving owners, known as a right of survivorship.) 

    Under common law, a conveyance must possess the unities of interest, title, time, and possession to create a joint tenancy with a right of survivorship, Williams wrote. All four unities are essential, so any act that destroys any of them severs the joint tenancy and extinguishes the cotenants’ right of survivorship. Thus, under common law, a cotenant’s conveyance of her interest in the property to a third party severs the joint tenancy and creates a tenancy in common between the remaining cotenant and the third party. 

    Jeffcoat argued that Section 27-7-40 of the South Carolina Code doesn’t allow one cotenant to convey her interest in the property to a third party, but the court rejected this novel argument. Williams noted that before the law was enacted in the 2000s, property owners had to first convey title to a “strawman” before they could create a joint tenancy between themselves and any new cotenants. 

    Many states have passed laws to allow joint tenancies to be created without such a step. Williams found that this was the purpose and intent behind South Carolina’s law as well and as such didn’t read anything in the statute that would preclude a joint tenant from conveying her interest in a property and severing the right of survivorship. 

    “This interpretation is further strengthened when the statute is read as a whole,” Williams wrote. “Moreover, our precedent supports this conclusion … Thus, we disagree with Jeffcoat’s assertion that section 27-7-40 rendered the conveyance of Decedent’s interest to Daughter void.” 

    Tim Domin of Clawson and Staubes in Charleston represented Williams. He could not be reached for comment about the court’s ruling. 

    Jason Luck of Bennettsville represented Jeffcoat. Luck said that his client had filed a petition for rehearing and declined to comment on ongoing litigation. In the petition, which Luck provided, Jeffcoat argues that the court’s opinion inappropriately creates new decisional law by allowing a joint tenant with right of survivorship to sever the tenancy in a manner not explicitly authorized by statute. 

    The 12-page decision is Williams v. Jeffcoat (Lawyers Weekly No. 011-049-21). The full text of the opinion is available online at sclawyersweekly.com. 

    Follow David Donovan on Twitter @SCLWDonovan 

     

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