2018 New Mexico Statutes
Chapter 47 - Property Law
Article 1 - Conveyances and General Provisions
Section 47-1-36 - Joint tenancies defined; creation.

A joint tenancy in real property is one owned by two or more persons, each owning the whole and an equal undivided share, by a title created by a single devise or conveyance, when expressly declared in the will or conveyance to be a joint tenancy, or by conveyance from a sole owner to himself and others, or from tenants in common to themselves, or to themselves and others, or from husband and wife when holding as community property or otherwise to themselves or to themselves and others, when expressly declared in the conveyance to be a joint tenancy, or when granted or devised to executors or trustees.

History: 1953 Comp., § 70-1-34.1, enacted by Laws 1971, ch. 220, § 1.

Test for creation of a joint tenancy. — The test in New Mexico to determine whether a joint tenancy has been established is whether the requirements embodied by the doctrine of the four unities of time, title, interest, and possession have been satisfied. In addition, Section 47-1-36 NMSA 1978 requires that the document purporting to create the joint tenancy include express language that the real property is to be held jointly. Edwin Smith, LLC v. Clark, 2011-NMCA-003, 149 N.M. 249, 247 P.3d 1134, cert. granted, 2010-NMCERT-012, 150 N.M. 493, 263 P.3d 270.

Where siblings acquired property by intestate succession; the siblings conveyed the property to the spouse of one of the siblings; and the spouse, without the joinder of the spouse's spouse, conveyed the property to the siblings as joint tenants, the siblings held the property, not as tenant in common, but as joint tenants because the siblings acquired the same interest in the property at the same time by the same conveyance and possessed an equal undivided share in the property and the deed clearly indicated that the siblings held the property as joint tenants. Edwin Smith, LLC v. Clark, 2011-NMCA-003, 149 N.M. 249, 247 P.3d 1134, cert. granted, 2010-NMCERT-012, 150 N.M. 493, 263 P.3d 270.

Termination of a joint tenancy. — As a matter of law, a joint tenancy in reality may be terminated and converted into a tenancy in common by a mutual course of conduct between the owners that demonstrates their intent to hold the property as tenants in common. Edwin Smith, L.L.C. v. Synergy Operating, L.L.C., 2012-NMSC-034, 285 P.3d 656, rev'g 2011-NMCA-003, 149 N.M. 249, 247 P.3d 1134.

Severance of a joint tenancy. — A joint tenancy will be severed by the destruction of any one or more of the four unities of a joint tenancy. A conveyance by a joint tenant of the joint tenant's interest to a third party, an express agreement between all of the joint tenants, or any conduct or course of dealing sufficient to indicate that all parties have mutually treated their interests as belonging to them in common will sever a joint tenancy. Edwin Smith, LLC v. Clark, 2011-NMCA-003, 149 N.M. 249, 247 P.3d 1134, cert. granted, 2010-NMCERT-012, 150 N.M. 493, 263 P.3d 270.

Where siblings owned property as joint tenants; the siblings filed a quiet title action in which they described themselves as heirs at law of their predecessor in title and as owners in fee simple; the siblings granted power of attorney to the spouse of one of the siblings to develop mineral interests on the property; the siblings designated one sibling as agent to receive payments from a natural gas company operating on the property and the sibling, as agent, entered into leases to develop the mineral interest on the property; and the heirs of deceased siblings received royalties, the acts of the siblings did not destroy one of the four unities of the joint tenancy necessary to sever the joint tenancy. Edwin Smith, LLC v. Clark, 2011-NMCA-003, 149 N.M. 249, 247 P.3d 1134, cert. granted, 2010-NMCERT-012, 150 N.M. 493, 263 P.3d 270.

Real estate contract as evidence of transmutation of property. — Although a real estate contract is not conclusive and is not, by itself, substantial evidence on the issue of transmutation of property, it at least constitutes some evidence of intent to transmute. Nichols v. Nichols, 1982-NMSC-071, 98 N.M. 322, 648 P.2d 780.

Execution of mortgage by one joint tenant. — Joint tenant could not execute a mortgage which would encumber other joint tenant's interest in the property without her consent. Texas Am. Bank/Levelland v. Morgan, 1987-NMSC-014, 105 N.M. 416, 733 P.2d 864.

Execution of a mortgage which encumbers one joint tenant's interest in property does not sever the joint tenancy. Texas Am. Bank/Levelland v. Morgan, 1987-NMSC-014, 105 N.M. 416, 733 P.2d 864.

Law reviews. — For symposium, "The Effects of an Equal Rights Amendment on the New Mexico System of Community Property: Problems of Characterization, Management and Control," see 3 N.M. L. Rev. 11 (1973).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Lack of final settlement of intestate's estate as affecting heir's right to partition of realty, 92 A.L.R.3d 473.

Property rights arising from relationship of couple cohabiting without marriage, 3 A.L.R.4th 13.

Severance or termination of joint tenancy by conveyances of divided interest directly to self, 7 A.L.R.4th 1268.

Estate created by deed to persons described as husband and wife but not legally married, 9 A.L.R.4th 1189.

Contract of sale or granting of option to purchase, to third party, by both or all of joint tenants or tenants by entirety as severing or terminating tenancy, 39 A.L.R.4th 1068.

Judgment lien or levy of execution on one joint tenant's share or interest as severing joint tenancy, 51 A.L.R.4th 906.

Property rights arising from relationship of couple cohabiting without marriage, 69 A.L.R.5th 219.