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Canterbury v. Kovacich

Real Estate Case




Page 457
74 P.3d 457 (Colo.App. 2003)

Lucy I. CANTERBURY, a/k/a Ima J. Mount, a/k/a

Lucy Imigean Canterbury, Plaintiff-Appellee,
Frank J. KOVACICH and Carolyn A. Kovacich,

Defendants-Appellees, and Estate of Terrell Taylor,

No. 02CA0197.
Court of Appeals of Colorado, Second Division

March 27, 2003.
Casemaker Note: Portions of this opinion were
specifically rejected by a later court in 92 P.3d 961.

Casemaker Note: Portions of this opinion were
specifically rejected by a later court in 92 P.3d 961.

Casemaker Note: Portions of this opinion were
specifically rejected by a higher court in 92 P.3d 961

Page 458

Dufford & Brown, P.C., Joanne Herlihy, Denver,
Colorado, for Plaintiff-Appellee.

No Appearance for Defendants-Appellees.
Fredrickson & Johnson, P.C., Bryan T. Fredrickson,
Canon City, Colorado, for Defendant-Appellant.


RULAND Judge.[*]


The personal representative for defendant, the estate
of Terrell Taylor (decedent), appeals from the judgment
determining that the estate does not hold any title in
certain real property. We affirm.
The relevant facts are not in dispute. The property at
issue consists of approximately 666 acres that are used
for producing hay and grazing livestock. In 1991
decedent was the sole owner of the property, and he
conveyed the title by warranty deed to himself and
plaintiff, L. Canterbury, as joint tenants.
In 1997, decedent signed a quitclaim deed that
purported to transfer the property to himself and plaintiff
as tenants in common. The deed stated: “It is my
intention by this deed to sever the joint tenancy created
by the 1991 deed and to create a tenancy in common.”
Based upon these facts, the trial court concluded
that the 1997 deed failed to terminate the joint tenancy as
a matter of law. The personal representative contends that
this ruling was error. We disagree.
The ownership of real property in the form of joint
tenancy is authorized and controlled by statute. Section
38-31-101, C.R.S.2002; Smith v. Greenburg, 121 Colo.
417, 218 P.2d 514 (1950). This form of ownership is
different from tenancy in common primarily because of
the right of survivorship. SeeBradley v. Mann, 34
Colo.App. 135, 525 P.2d 492 (1974), aff’d, 188 Colo.
392, 535 P.2d 213 (1975). That is, if one joint tenant dies,
his or her interest is transferred to the surviving tenant or
tenants by operation of law. SeeMangus v. Miller, 35
Colo.App. 115, 532 P.2d 368 (1974).
A joint tenancy can be created if the owner of real
estate conveys the title to
Page 459
himself and a third person as joint tenants. See §
38-31-101(1), C.R.S.2002. Conversely, under certain
circumstances, the joint tenancy form of ownership can
be terminated as between the tenants if one tenant
conveys his or her interest to a third party. SeeCarmack v.
Place, 188 Colo. 303, 535 P.2d 197 (1975). In that event
the third party and the other tenants become tenants in
common. SeeAlden v. Alden, 155 Colo. 51, 393 P.2d 5
However, those courts that have addressed the issue
are not in agreement whether a joint tenant can terminate
the joint tenancy by simply signing a deed that purports
to convey title to that individual as a tenant in common.
See Wendy Evans Lehmann, Annotation, Severance or
Termination of Joint Tenancy by Conveyance of Divided
Interest Directly to Self, 7 A.L.R.4th 1268 (1981). We
conclude that such a deed does not terminate the joint
tenancy in this jurisdiction.
As noted, the principal feature of joint tenancy
ownership is the survivorship aspect. If the tenants
mutually agree to eliminate that feature, proof of the
agreement is sufficient, and other formalistic
requirements are not imposed. See Bradley v. Mann,
supra; see alsoCamack v. Camack, 62 P.3d 1097
(Colo.App.2002). Indeed, mutual acts of the joint tenants
that are inconsistent with the right of survivorship may be
sufficient. See Mangus v. Miller, supra.
We find no such trend, however, in the Colorado
appellate decisions when one joint tenant acts alone and
without the agreement of the other. Instead, in Estate of
Lee v. Graber, 170 Colo. 419, 462 P.2d 492 (1969), the
Colorado Supreme Court described the rights of each
joint tenant as “fixed and vested” at the time the joint
tenancy is created, and the court noted that the grantor in
a joint tenancy deed who is named as one of the grantees
no longer has the power to exercise absolute dominion
over the property.
If this court were to uphold the unilateral effort here
by one joint tenant to terminate the joint tenancy, we
would approve a form of dominion over plaintiff’s rights
as a surviving joint tenant. We would also ignore the
general conveyancing rule that a deed in which the
grantor and the grantee are the same person transfers no
title or interest to the grantee different from that already
held by the grantor. SeeKrause v. Crossley, 202 Neb. 806,
277 N.W.2d 242 (1979). We view that result as
inconsistent with the rationale of Estate of Lee v. Graber.
Contrary to the personal representative’s contention,
we do not read First National Bank v. Energy Fuels
Corp., 200 Colo. 540, 618 P.2d 1115 (1980), as support
for his contention. There the supreme court addressed the
rights of joint tenants when a judgment lien against one
tenant is foreclosed and other liens created by both
tenants are outstanding. The court acknowledged in
dictum that a joint tenancy can be terminated if one
tenant conveys his or her interest to a third party. The
court did not suggest, however, that the tenant could
convey to himself and obtain the same result.
Under these circumstances, we agree with the trial
court’s ruling.
The judgment is affirmed.
Judge NEY and Judge MARQUEZ concur.
[*] Sitting by assignment of the Chief Justice under
provisions of Colo. Const. art. VI, § 5(3), and §
24-51-1105, C.R.S.2002.