Joint tenancy is the ownership of real property by two or more co-owners (joint tenants) who have identical interests in the property—and also have a right of survivorship.

A right of survivorship means that upon the death of a joint tenant the property passes directly to the other joint tenant(s), allowing the ownership to be transferred to the surviving joint tenant(s) without going through the probate or court systems. A joint tenancy is sometimes referred to as a joint tenancy with right of survivorship.

This right of survivorship is what distinguishes a joint tenancy from a tenancy in common, in which co-owners hold the property as tenants in common. In some states the right of survivorship must be clearly expressed in the document transferring or conveying the property to the joint tenants, or the tenancy will be presumed to be a tenancy in common.

Laws vary from state to state and in many states the law regarding joint ownership of real property is located in a state’s statutes—although it may also be located in a state’s court opinions (common law or case law).

In New Mexico, joint tenancy is recognized as a form of property co-ownership that includes a right of survivorship. This means that when one of the joint tenants dies, their interest in the property automatically passes to the surviving joint tenant(s), without the need for probate proceedings. To create a joint tenancy in New Mexico, the four unities of time, title, interest, and possession must be present, meaning that the joint tenants must acquire the property at the same time, through the same deed, have equal interest and rights to the whole property, and have equal rights to possess the property. Additionally, the right of survivorship must be explicitly stated in the deed or conveyance document to establish a joint tenancy rather than a tenancy in common, which does not include the right of survivorship. If the right of survivorship is not clearly expressed, the ownership may be presumed to be a tenancy in common. It is important for property owners to ensure that the deed reflects their intentions clearly and complies with New Mexico law to avoid unintended consequences. An attorney can provide guidance on drafting the appropriate documents to establish joint tenancy with right of survivorship.