Tenancy in Common in Georgia: What Co-Owners Need to Know

When two or more people own property together in Georgia, the way that ownership is structured matters — both while everyone is alive and when one owner dies. Tenancy in common is the default form of co-ownership under Georgia law, and understanding its rules, rights, and limitations is important for anyone buying property with another person, inheriting a shared interest, or planning their estate.

What Is Tenancy in Common?

Tenancy in common is a form of co-ownership in which two or more people each hold an undivided fractional interest in the same property. Each owner has the right to use and possess the entire property — not just their percentage share — but also holds a distinct ownership interest they can sell, transfer, or pass on to heirs.

Under Georgia Code § 44-6-120, a tenancy in common is created by default whenever two or more people become entitled to simultaneous possession of property, unless the deed specifically states otherwise. Shares are presumed to be equal unless the deed or other governing document states a different allocation.

How Tenancy in Common Differs From Joint Tenancy

The most important distinction between tenancy in common and joint tenancy involves what happens when one owner dies.

In a joint tenancy with right of survivorship — which must be explicitly stated in the deed in Georgia — the deceased co-owner's share automatically passes to the surviving owners. This happens outside of probate and is a common estate planning tool for married couples.

In a tenancy in common, there is no right of survivorship. When a co-owner dies, their share becomes part of their estate and is distributed according to their will or, if there is no will, under Georgia's intestacy laws. This means the surviving co-owners have no automatic claim to the deceased's share, and the property may end up being co-owned with heirs who were unknown to them previously.

Key Features of Tenancy in Common

Unequal shares are permitted. Unlike joint tenancy, tenancy in common allows co-owners to hold different percentages of the property. One person might own 60% while another owns 40%, reflecting different levels of financial contribution or negotiated arrangements.

Each owner can transfer their share independently. A tenant in common can sell, gift, mortgage, or leave their interest to heirs without needing the consent of the other co-owners. This flexibility is one of the structure's primary advantages — but it also means the remaining owners could find themselves sharing ownership with a stranger.

All co-owners have the right to possess the entire property. Regardless of share size, each tenant in common has the right to use and occupy the whole property. One owner who occupies more than their proportional share isn't automatically liable to the others for rent, as long as they're not excluding the other co-owners or extracting value — such as mineral deposits — beyond their proportional share.

Rental income must be shared. If the property generates rental income or other profits, each tenant in common is entitled to their proportional share, and a co-owner who collects more than their share must account to the others for the difference.

Advantages of Tenancy in Common

Tenancy in common offers meaningful flexibility that other ownership structures don't. It allows unrelated parties — business partners, investors, or family members with different financial stakes — to co-own property with shares that reflect their actual contributions. It also allows each owner to direct their interest to the heir of their choice rather than to the surviving co-owners, which can be important in blended families or business contexts.

For investment properties or situations where co-owners may have different exit timelines, the ability to sell one's share without group consent provides an important degree of autonomy.

Disadvantages and Risks

The same flexibility that makes tenancy in common useful also introduces risk. Because any owner can sell or transfer their share independently, co-owners can end up sharing property with people they didn't choose. A creditor of one co-owner may also be able to pursue that owner's interest in the property to satisfy a debt, potentially forcing an unwanted sale.

The lack of right of survivorship means the property is subject to probate when each co-owner dies, which can be slow, costly, and public. In estates with multiple properties and several co-owners dying over time, this creates compounding complexity.

Partition: When Co-Owners Can't Agree

If tenants in common disagree about how property should be used, managed, or sold, any co-owner can file a partition action in court. A partition allows a judge to either physically divide the property between the owners — which is practical only for land that can be subdivided — or order the property sold with the proceeds distributed according to each owner's share. Partition actions can be contentious and expensive, making co-ownership agreements that address decision-making and exit strategies well worth establishing upfront.

Estate Planning Considerations

For Georgia co-owners who want to avoid the probate complications that tenancy in common creates, several planning options exist. Placing one's share in a revocable living trust allows the interest to transfer to beneficiaries without probate while keeping it available and usable during the owner's lifetime. Alternatively, co-owners may agree to convert to joint tenancy with right of survivorship if passing ownership to each other is the goal, or to establish a family limited partnership or LLC to hold the property collectively.