Delaware Court of Chancery Finds that Real Property Deeds Need not Include the Phrase “and not as Tenants in Common” to Create a Joint Tenancies as Long as the Intent to Create a Joint Tenancy is Unambiguous

Delaware Fiduciary Litigation Blog

Posted April 1, 2016

David L. Banks v. Mackie H. Banks and the Estate of Russell V. Banks, C.A. No. 10934-VCG

This case involved fifteen parcels of real property (the “Properties”) that were owned by the Petitioner David L. Banks and his brother Russell V. Banks. Russell died testate in July of 2012. Russell’s estate claimed that the Properties were owned as tenants in common despite an apparent intention to record them as joint tenancies with a right of survivorship. David brought suit against the estate and the executrix and asserted that because Russell had died he (David) is the sole owner of the Properties as the Properties had been unambiguously titled as joint tenancies with a right of survivorship. The parties moved for cross judgment on the pleadings.

The deeds for each of the Properties read that Russell and David took the Properties “as joint tenants with right of survivorship.” The estate argued that that language was not sufficient to create a joint tenancy with a right of survivorship under 25 Del. C. § 701. Section 701 provides that no estate in joint tenancy is created “unless the premises . . . are expressly granted, devised or conveyed . . . , to be held as joint tenants and not as tenants in common.” The executrix and the estate argued that because the deeds did not also say “and not as tenants in common” a joint tenancy had not been created.

After recounting the history of Section 701 and the general switch in preference to tenancies in the common that had occurred in the early 1800s, the Court concluded that the policy of Section 701 is served as long as the intent to create a joint tenancy is unambiguous. In short, the Court found that the phrase “and not as tenants in common” need not be included to create a joint tenancy as long as the deed is unambiguous. Here, the Court found that the language in the deeds conveying the Properties to Russell and David as “joint tenants with right of survivorship” was unambiguous.  Consequently, the Court granted David’s motion for judgment on the pleadings and found that David and Russell had owned the Properties as joint tenants with a right of survivorship and not as tenants in common.

Note: This law firm represents David Banks in this matter.


William M. Kelleher, Director
Gordon, Fournaris & Mammarella, P.A.