Rethinking the Intersection of Inheritance and the Law of Tenancy in Common

This Article is about "identity property," which it defines as property that is strongly linked to one's sense of self and family and is valued by its holder primarily for what it represents. Identity property is often jointly inherited by siblings or other relatives, who take as tenants in common. Standard doctrine relies on familial bonds and the unilateral right of partition to mitigate the problem of bilateral monopoly and to foster cooperation in the management of the tenants' common resource. The Article argues that, in the context of identity property, this standard account is wrong. Rather, because the law favors partition by sale, the exit of one tenant often means that the remaining cotenants will be forced to sell the identity property. Because the remaining tenants perceive the property as nonfungible, the threat of exit is powerful enough to exacerbate the bilateral monopoly and decrease the likelihood of cooperation. The Article relies on the example of the family cottage to elucidate the meaning of "identity property" and examines the formal agreements that relatives who jointly own cottages make when they decide to opt out of the tenancy in common default rules. These formal agreements reveal a willingness to sacrifice the right of exit in order to increase the odds that co-tenants will continue to own the identity property. The Article argues that the law should heed the message of these formal agreements and adopt a more flexible approach to the inheritance of identity property, including the possibilities of temporal partition and facilitated agreement. INTRODUCTION I. A REPRISE OF TENANCY IN COMMON LAW A. The Law as Applied to Inherited Identity Property 1. Family Cottages 2. Tenancy in Common Law in Action B. Tenancy in Common Opt Out II. THE CONSEQUENCE FOR PROPERTY LAW III. TREATING IDENTITY PROPERTY DIFFERENTLY A. Temporal Partition B. Facilitated Agreement CONCLUSION INTRODUCTION Property textbooks are full of legal doctrines that were once important but now merit little more than an historical footnote--the fee tail, the Rule in Shelley's Case, the destructibility of contingent remainders. This Article suggests that tenancy in common, while not yet passe, is no longer as robust as it once was. No one with legal sophistication who wishes to jointly own property opts for a co-tenancy. Instead they form limited liability corporations, limited partnerships, or trusts. Most modern tenancies in common, in contrast, occur accidentally through the confluence of default property rules and poor estate planning. Often the property that is the subject of these accidental tenancies is extraordinarily dear to both the testator and the heirs. The accidental nature of many tenancies in common, coupled with the kind of property involved, should prompt an overhaul of our approach to this ancient form of ownership. Margaret Radin famously wrote that there is a relationship between property and personhood. That is, "[m]ost people possess certain objects they feel are almost part of themselves." (1) In Radin's formulation, such objects are "bound up with the holder" (2) and essential to the self; the loss of these objects harms the individual and interferes with the ability to flourish and develop. As Stephanie Stern has recently argued, emerging social science has called into doubt the extent to which any one piece of property can be essential to the self. (3) As such, this Article does not rely on Radin's "personhood" terminology and instead refers to the inherited property with which it is concerned as "identity property." (4) "Identity property" is Radin's personhood property ratcheted down. Identity property is closely linked to one's sense of self and family and is valued primarily for what it signifies and embodies, not for its economic worth. As with Radin's "personhood property," identity property is nonfungible and thus cannot be replaced even by a mostly identical item with the same market value. …