Darryl F. Bryant, Sr. v. Darryl F. Bryant, Jr.

OPINION

delivered the opinion of the court,

We granted permission to appeal in this case to address whether a'joint tenancy with an express right of survivorship can be severed by the unilateral actions of one of the co-tenants. The owner of the property at issue in this appeal executed a deed conveying the property to herself and to her son in a joint tenancy with right of survivorship. The same grantor later executed a quitclaim deed granting her interest in the property to her grandson (the son’s child). After the grantor died, the son filed a declaratory judgment action against the grandson, claiming that the son was the rightful owner of the property in fee simple as the surviving joint tenant under the first deed. In response, the grandson asserted that the grantor’s second-deed severed the joint tenancy, conveyed the grantor’s one-half interest to him, and destroyed the son’s right of survivorship. The trial court granted the son’s motion for summary judgment, and the Court of Appeals affirmed. We reverse. Following the common-law doctrine of severance, we hold that a joint tenancy with an express right of survivorship may be severed by the unilateral action of one of the co-tenants, and that doing so converts the estate into a tenancy in common and destroys the survivorship interests of the original joint tenants. In this case, the grantor’s second deed, conveying her interest in the property to the grandson, severed the joint tenancy and destroyed the son’s right of sur-vivorship, so the son and the grandson own the property in equal parts as tenants in common.

Factual and Procedural Background

In April 2006, James and Molly Bryant, husband and wife, purchased property on Hadley Avenue in Old Hickory, Davidson County, Tennessee (“the Property”), In February 2009, James Bryant died, and Molly Bryant became the sole owner of the Property.

A few months after Mr. Bryant’s death, on June 9, 2009, Ms. Bryant executed a quitclaim deed that conveyed the Property to herself and her son, Plaintiff/Appellee Darryl Bryant, Sr. (“Son”), as joint tenants .with an express right of survivorship. The deed to Ms. Bryant and Son states: “I, Molly Bryant, a widow, have this day bargained and sold, and do hereby transfer and convey unto Molly Bryant and Darryl Bryant[, Sr.,] for the purpose of creating a joint tenancy with right of survivorship, ... all my estate, right, title, interest and claim in and to [the Property].”

Just over a year later, on September 2, 2010, Ms. Bryant executed another quit*397claim deed on the same Property. This quitclaim deed purported to convey the Property to Son’s child, Defendant/Appellant Darryl F. Bryant, Jr., who is Ms. Bryant’s grandson (“Grandson”). The deed states that Ms. Bryant does “hereby quitclaim undivided interest, right, and title [in the Property] to [Grandson].” Both the June 2009 deed and the September 2010 deed were duly recorded with the Register of Deeds for Davidson County.

In November 2013, Ms. Bryant died at the age of eighty-nine. At the time of Ms. Bryant’s death, Grandson was living with her in the home on the Property.

In July 2014, Son filed a complaint against Grandson in the Chancery Court of Davidson County, Tennessee, seeking a declaratory judgment, and possession of the Property. In the complaint, Son averred that, because the June 2009 quitclaim deed granted Son a right of survivor-ship, he became the sole owner of the Property in fee simple upon Ms. Bryant’s death. He asserted, “The only interest that [Ms. Bryant] conveyed to [Grandson] was her survivorship interest whereby she would own the Property if she survived [Son].”. Thus, Son contended, upon Ms. Bryant’s death, Grandson was left with no interest in the Property, Son asked the trial court to enter “an order declaring that the Property is now vested entirely in [Son] and that [Grandson] has no ownership in the Property, legal or equitable, whatsoever.” Son also sought an order requiring Grandson to vacate the Property. Soon after filing the complaint, Son filed a motion for summary judgment claiming that, on the undisputed facts, he was entitled to judgment as a matter of law.

In response, Grandson filed a motion to strike Son’s summary judgment motion and to dismiss the complaint for failure to state a claim upon which relief could be granted. See Tenn. R. Civ. P. 12,02(6). Grandson claimed in his motion that, in the September 2010 deed, Ms. Bryant conveyed to- him her one-half interest in the property and that this conveyance severed Son’s right of survivorship. Grandson asserted that Son’s complaint was “based on an improper legal premise that the co-tenants in a Joint Tenan[cy] with the Right of Survivorship are not at liberty to unilaterally terminate the Right of Surviv-orship.” He contended that, when Ms. Bryant conveyed her interest to him (Grandson), Son and. Grandson became equal owners in the Property as tenants in common. The trial court denied Grandson’s motion to dismiss and scheduled a hearing date for Son’s summary judgment motion.

In October 2014, the trial court conducted the scheduled hearing on Son’s motion for summary judgment.1 Ultimately, the court ruled in favor of Son. It approached the issue as one of first impression; looking- to the law in other jurisdictions, the trial court decided to take guidance from the law in Michigan. Following Michigan law, the trial' court held that a joint tenancy with an express right of survivorship is comprised oí a joint life estate with dual contingent remainders and that the contingent remainders are not subject to being destroyed by the actions of a co-tenant. Slip Op. at 3-4 (following Wengel v. Wengel, 270 Mich.App. 86, 714 N.W.2d 371, 378 (2006) (citing Albro v. Allen, 434 Mich. 271, 464 N.W.2d 85, 93 (1990))). Accordingly, the trial court held, each co-tenant in a joint tenancy with right of survivorship “has the right to own the fee title upon the death of the other cotenant,” and “[o]ne *398co[-]tenant should not have the right to destroy that right of survivorship by his/ her unilateral action.” Id. at 4. On that basis, the trial court granted summary judgment in favor of Son. Grandson appealed.

The Court of Appeals affirmed the trial court’s decision, albeit on a different basis. Bryant v. Bryant, No. M2014-02379-COA-R3-CV, 2015 WL 5695207, at *4 (Tenn. Ct. App. Sept. 28, 2015). The appellate court reasoned that “Ms. Bryant’s intent, as evidenced by the language she used in her deeds, determines the outcome in this cáse.” Id. It first observed that the June 2009 deed plainly reflected Ms. Bryant’s intent to convey to Son a joint tenancy ■with an express right of survivorship. The appellate court then pointed out that the September 2010 deed to Grandson included a reference to the June 2009 deed to Son. The reference was contained in the September 2010 deed’s derivation clause, which gives information about the source of the grantor’s title. The relevant part of the derivation clause, stated: “Reference is also made to instrument number 20090611-0054308,” which is the June 2009 deed. Id. Ms. Bryant’s reference to the June 2009 deed in the September, 2010 deed to Grandson, the Court of Appeals surmised, indicated an intent to convey to Grandson “her interest in the Property, including her right of survivorship, but only in the event that she outlived [Son].” Id. The appellate court explained: “Ms. Bryant would have had no reason to reference expressly her earlier deed to [Son] unless she wanted [Grandson] to be aware of the joint tenancy and survivorship interest she had already conveyed , to his father.” Id. It added, “If [Son] had predeceased Ms. Bryant, then [Grandson] would have become the fee simple owner of the Property upon [Son’s] death.” Id. Because Ms. Bryant predeceased Son, the appellate court concluded, Son “is the sole surviving ■joint tenant, and he now owns the Property in fee simple.” Id. We granted Grandson’s application for permission to appeal.

Issues and Standard of Review

On appeal, Grandson presents four issues for our review:

1. Under Tennessee law, what are the characteristics of a joint tenancy with a right of survivorship? How may the right of survivorship be terminated in a joint tenancy?

2. Does the grantor’s creation of a joint tenancy give rise to any contract rights between the joint tenants as suggested by the trial court?

3. Does the derivation clause in a deed show intent of the grantor as suggested by the Court of Appeals?

4. When two parties hold real property located in Tennessee as “joint tenants with right of survivorship,” and one of those parties independently conveys all “interest, right, and title” to a third party, what is the resulting estate in land between the original joint tenant and the third party?

We perceive the pivotal issue to be whether the joint tenancy, with an express right of survivorship established in the June 2009 deed was severed by the actions of Ms. Bryant in executing the September 2010 deed to Grandson. If so, Son and Grandson own the Property in equal parts as tenants in common. If not, Son now owns the Property in fee simple as the surviving joint tenant under the June 2009 deed.

This appeal arises out of the trial court’s grant of summary judgment, so we review the trial court’s decision de novo *399with no presumption of correctness.2 Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)); Parker v. Holiday Hospitality Franchising, 446 S.W.3d 341, 346 (Tenn. 2014). Summary judgment should be granted only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. Conversely, summary judgment should not be granted when there are genuine disputes of material fact. Rye, 477 S.W.3d at 264-65; Parker, 446 S.W.3d at 346. In the instant case, the material facts are not disputed. We are. presented with only questions of law, which are reviewed de novo, affording no deference to the decisions of the lower courts. See Rye, 477 S.W.3d at 250.

Analysis

Tenancies Under Common Law

Tennessee recognizes three basic forms of concurrent ownership in real property: joint tenancy, tenancy in common, and tenancy by the entirety. See Griffin v. Prince, 632 S.W.2d 532, 535 (Tenn. 1982). A brief review of these tenancies is helpful to our discussion.

At common law, the type of tenancy that results from a conveyance of real property to two or more persons depends on the whether the four unities—interest, title, time, and possession—exist at the time of conveyance. Bennett v. Hutchens, 133 Tenn. 65, 179 S.W. 629, 631 (1915) (describing the four unities as having “one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession” (quoting 2 William Blackstone, Commentaries 180)); 2 Tiffany Real Prop. § 418 (3d ed. 2016) (quoting 2 William Blackstone, Commentaries 180). If the four unities exist at the time of the conveyance and the conveyance is made to a married couple, the conveyance results in a tenancy by the entirety, absent language indicating a contrary intent.3 Bennett, 179 S.W. at 631. If the' four unities exist but the conveyance is to unmarried persons, the conveyance results in a joint tenancy; by operation of law, a common-law joint tenancy includes a right of survivorship even when no words of survivorship are used in the granting instrument. Peebles v. Peebles, 223 Tenn. 221, 443 S.W.2d 469, 470 (1969) (quoting Jones v. Jones, 185 Tenn. 586, 206 S.W.2d 801, 803 (1947)); Bunch v. Bunch, No. 02A01-9705-CH-00106, 1998 WL 46217, at *1 (Tenn. Ct. App. Jan. 8, 1998) (citing Jones, 206 S.W.2d at 803); see also Du*400rant v. Hamrick, 409 So.2d 731, 742 (Ala. 1981) (Adams, J., dissenting) (commenting that “to say ‘joint tenancy with right of survivorship’ is redundant”). If, however, the four unities are not present at the time of the conveyance, the conveyance results, in a.tenancy in common, which does not include a right of survivorship. See Runions v. Runions, 186 Tenn. 25, 207 S.W.2d 1016, 1017 (1948) (holding that, when a husband first acquired property and then conveyed it to his wife, they could not hold the property as tenants by the entirety or joint tenants because “the four unities did not coincide,” so the deed created a tenancy in common with a right of survivorship).

There are important differences among the three types of common-law tenancies. We summarize the differences as background for our analysis.

A tenancy by the entirety is held exclusively by persons who are legally married. It is ancient in origin and remains firmly established in Tennessee.4 Griffin, 632 S.W.2d at 534-35; see Tenn. Code Ann. §§ 36-3-505, 31-1-108. Tenancy by the entirety is based on the concept that those who are married are not separate persons; rather, they “are but one person.” Tindell v. Tindell, 37 S.W. 1105, 1106 (Tenn. Ch. App. 1896) (quoting Den v. Hardenbergh, 10 N.J.L. 42, 45 (1828)); see Taul v. Campbell, 15 Tenn. (7 Yer.) 319, 333 (1835) (noting that a husband and wife “take but one estate, as a corporation would take, being by the common law deemed but. one person”). Consequently, co-tenants in a tenancy by the entirety do not hold, their interest by moieties (by parts), they hold by the entirety: “Each is not seised of an undivided moiety, but both are ... seised of the whole. They are seised, not per my et per tout [by the half and by the whole], but solely and simply per tout [by the whole].”5 Tindell, 37 S.W. at 1106 (quoting Den, 10 N.J.L. at 45).

When property is held in a tenancy by the entirety, upon the death of one spouse, the survivor continues to own the whole in fee simple. Technically, then, the surviving spouse does not acquire the fee simple interest through a right of sur-vivorship; the survivor “enjoys the whole [after the death of the other spouse], ... not because any new or further estate or interest becomes vested, but because of the original conveyance, and of the same estate and same quantity of estate as- at the time the conveyance was perfected.” Id. (quoting Den, 10 N.J.L. at 45) (explaining that “[b]etween husband and wife, the jus accrescendi [right of survivorship] does not exist”); see Cole Mfg. Co. v. Collier, 95 Tenn. 115, 31 S.W. 1000, 1001 (1895); Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695, 698 (1956); Taul, 15 Tenn. (7 Yer.) at 336-37.

At common law, the primary difference between holding in' joint tenancy and tenancy in common is that joint tenancy includes a right of survivorship between the co-tenants by operation of law, whereas tenancy in common does not. See Peebles, 443 S.W.2d at 470; Bunch, 1998 WL 46217, at *1. While a tenancy by the entirety can consist only of two persons *401seized of one estate, both joint tenancy and tenancy in common “impl[y] a plurality of persons” and “each of the owners has an undivided moiety, or. other proportional part, of the whole premises.” Tindell, 37 S.W. at 1106 (quoting Den, 10 N.J.L. at 46); see Taul, 15 Tenn. (7 Yer.) at 336 (citation, omitted) (noting that, unlike a tenancy by the entirety, “[t]he estate of joint tenants is [a] unit, made up of divisible parts subsisting in different natural persons”).

“Tenants in common are jointly seized of the whole estate, each having an equal right of entry and possession Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695, 697 (1966). Right of survivor-ship is not an- incident of tenancy in common; however, the grantor may include in the instrument of conveyance express language attaching a right of survivorship to the tenancy in common. See Runions, 207 S.W.2d at 1017 (“Even a tenancy in common may have a right of survivorship attached to it if the grantor expresses an intention that it shall be so.” (quoting Mitchell v. Frederick, 166 Md. 42, 170 A. 733, 735-36 (1934))).

Common-Law Doctrine of Severance

Severance is the termination of a tenancy “by any act which is inconsistent with its' continued existence, or which operates to destroy its essential unities or one or some of them.” W. W. Allen, Annotation, What Acts By One or More of Joint Tenants Will Sever or Terminate the Tenancy, 64 A.L.R.2d 918, § 2 (1959) (footnote omitted); 20 Am. Jur. 2d Cotenancy and Joint Ownership § 21 (2015). Because spouses in a tenancy by the entirety are treated as one person, a spouse in such a tenancy cannot sever it unilaterally by transferring a portion of the property without the assent of the other spouse, as doing so would destroy the survivor’s right to own the whole. Tindell, 37 S.W. at 1106 (quoting Den, 10 N.J.L. at 45); Taul, 15 Tenn. (7 Yer.) at 336. In contrast, in a common-law joint .tenancy, any joint tenant can, “at his. pleasure, dispose of his share, and convey it to a stranger, who will hold undivided, and in common with the other owner.” Tindell, 37 S.W. at 1106 (quoting Den, 10 N.J.L. at 45); see McLeroy v. McLeroy, 163 Tenn. 124, 40 S.W.2d 1027, 1028 (1931) (citations omitted) (“One joint tenant can convéy his interest in land without the joinder of the other tenant.”); McGhee v. Henry, 144 Tenn. 548, 234 S.W. 509, 509-10 (1921) (indicating that, unlike in a tenancy by.the entirety, a joint tenant “can separate his interest from the other”); Knight v. Knight, 62 Tenn.App. 70, 458 S.W.2d 803, 807 (1970) (noting that “inalienability is -an incident only of estates by the entireties”); see also Bunch, 1998 WL 46217, at *2 (relying in part on Tindell and McLeroy to hold that, absent agreement to the contrary, a joint tenancy may be partitioned at the request of only one of the joint tenants).

The severability of a common-law joint tenancy is based on the premise that, once any of the four unities is destroyed, the estate by definition is no longer a joint tenancy; it becomes a tenancy in common. See Tindell, 37 S.W. at 1106 (citation omitted); see also United States v. Craft, 535 U.S. 274, 280, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002). When one joint tenant severs his interest by conveying it to a third person, the joint tenancy becomes a tenancy in common between the third person and the remaining joint ten-antis), and the right of survivorship is destroyed. See 2 Tiffany Real Prop. § 425 & n.64.10 (3d ed.); 20 AM. JUR. 2d Cotenancy and Joint Ownership § 21 (2015). One commentator has explained:

“In the ancient language of the law, joint tenants were said to hold per my et *402per tout, or in plain words, ‘by the moiety or half and by all.’ ” This statement, which of course is strictly accurate only in the case of there being but two joint tenants, serves to indicate the conception of a joint tenancy as one which allows each owner to hold a particular share which he may alienate, while at the same time he and the other or others hold the entire property as by a single ownership. The theoretical peculiarity of a joint tenancy at common law, and also by the law as it still generally prevails, is the coexistence of the four unities, the unity of interest, the unity of title, the unity of time, and the unity of possession, that is to say, “joint tenants have one and the same interest accruing by one and the same conveyance, at one and the same time, and held by one and the same undivided possession.” The principal practical aspect of a joint tenancy consists in the fact that on the death of one of the joint tenants, no severance of his interest having theretofore occurred, the exclusive title inures to the surviving joint tenant or tenants.

Prom these peculiarities of ownership it follows logically, and also under the law, that joint tenants can terminate the joint tenancy by any act which is inconsistent with its continued existence, or which operates to destroy its essential unities or one or some of them. So to the extent of the interest affected, and therefore in toto where there are only two joint tenants, a joint tenancy is severed by any act of a joint tenant which operates to destroy one or more of its unities.

Allen, supra, at § 2 (emphasis added) (footnotes omitted); see Tindell, 37 S.W. at 1106 (“A severance of a joint tenancy may be made, and the estate thereby turned into a tenancy in common, by any one of the joint owners, at his will.” (quoting Den, 10 N.J.L. at 45)); see also Craft, 535 U.S. at 280, 122 S.Ct. 1414 (stating generally that, when one joint tenant conveys his interest to another, the estate -is severed, which means it is “converted to a tenancy in common with each tenant possessing an equal fractional share”). Of course, “[a]n ownership interest of a tenant in common is severable” by any of the co-tenants. 20 AM. JUR. 2d Cotenancy and Joint Ownership § 39 (2015).

Abolition of the Survivorship Interest in Joint Tenancies

Eventually, the survivorship interest incident to common-law joint tenancies fell into disfavor in both America and England. R. P. Davis, Annotation, Creation of Right of Survivorship by Instrument Ineffective to Create Estate by Entireties or Joint Tenancy, 1 A.L.R.2d 247, § 1 (1948). One commentator suggests that hostility toward joint tenancies began to develop partly because “Americans were coming to regard land as a commodity,” rather than simply as family land. Byron D. Cooper, Continuing Problems with Michigan’s Joint Tenancy “With Right of Survivorship”, 78 Mich. B. J. 966, 967 (1999). “A joint tenancy Vas suitable for family lands; less so, for lands of people dealing at arm’s length with each other in the market.’ ” Id. (quoting Lawrence M. Friedman, a History op American Law 235 (2d ed. 1985)). As a result of the disfavor toward survivorship rights, legislation abrogating the common-law rule “and modifying or abolishing the doctrine of surviv-orship has been enacted in virtually every state.” Davis, supra, at § 1; see Banks v. Banks, 135 A.3d 311, 313-14 (Del. Ch. 2016) (“Legislatures in jurisdictions in this country have since curbed and even eliminated the estate of joint tenancy with right of survivorship .... ”).

A review of the early history of our nation reveals that at no time during her *403statehood has Tennessee recognized a sur-vivorship interest incident to joint tenancies. Before Tennessee became a state, much of what is now Tennessee was held by North Carolina. See Tee Haegett, Secretary of State, Tennessee Blue Book 2015-2016 506-07 (2015). The North Carolina legislature abolished the incidental right of survivorship in joint tenancies in that territory by enacting the Act of 1784, chapter 22, section 6. 1 Edward Scott, Laws of the State of Tennessee, Including Those of North Carolina Now in Force in this State From the Year 1715 to the Year 1820, Inclusive 294 (Heiskell & Brown 1821); see Gaines v. Catron, 20 Tenn. (1 Hum.) 514, 515-16 (1840); Bennett, 179 S.W. at 631; Scholze v. Scholze, 2 Tenn. App. 80, 90 (1925). The Act of 1784 provided:

[I]n all estates real and personal, held in joint tenancy, the part or share of any tenant dying shall not for the future descend or go to the surviving tenant or tenants, but shall descend or be vested in the heirs, executors, administrators or assigns respectively of the tenant so dying, in the same manner as estates held by tenancy in common, any law usage or custom to the contrary notwithstanding

[[Image here]]

Scott, supra, at 294. The explicit purpose of the North Carolina legislation was to prevent “manifest injustice to the family of [the co-tenant] who may happen to die first.” Id. In 1789, when North Carolina ratified the new Constitution of the United States, it ceded’ its western lands to the federal government; the territory ceded included much of what is now Tennessee. Hargett, supra, at 507; see Fogg v. Williams, 39 Tenn. (2 Head) 474, 478-79 (1859); Overton’s Lessee v. Campbell, 6 Tenn. (5 Hayw.) 165, 168 (1818). When Tennessee became a state a few years later in 1796, Tennessee’s first Constitution and the cession act of North Carolina made North Carolina’s Act of 1784 the law in Tennessee.6 Shepherd Fleets, Inc. v. Opryland USA Inc., 759 S.W.2d 914, 915 (Tenn. Ct. App. 1988).

The above-quoted provision in North Carolina’s Act of 1784 remained the law in Tennessee until our General Assembly enacted Tennessee’s own organized Code system—the Code of 1858—which repealed and replaced all prior existing public and general acts. See Shepherd Fleets, 759 S.W.2d at 915-16 (citing State v. Miller, 79 Tenn. 620, 625-26 (1883)). Tennessee’s Code of 1858, however, included a section substantially identical to the relevant section in the North Carolina Act of 1784, providing a seamless legislative abolition of the survivorship interest incident to joint tenancies in Tennessee. Tenn. Code Ann. § 2010 (1858). Over the years, this provision abolishing the survivorship interest in joint tenancies has remained the law in Tennessee.7 Now codified at Tennessee Code Annotated section 66-1-107, it contains language that is nearly identical to the corresponding provision in the Act of 1784:

*404In all estates, real and personal, held in joint tenancy, the part or share of any tenant dying shall not descend or go to -the surviving tenant or tenants, but shall descend or be vested in the heirs, executors, or administrators, respectively, of the tenant so dying, in the same manner as estates held by tenancy in common.

Tenn. Code Ann. § 66-1-107 (2015).

Although the incidental right of survivorship in joint tenancies has never existed in Tennessee, our courts have consistently recognized that property owners remain free “to expressly provide for sur-vivorship by deed.” Jones, 206 S.W.2d at 803; see also Lowry v. Lowry, 541 S.W.2d 128, 131 (Tenn. 1976); Peebles, 443 S.W.2d at 471. As. a result, any survivorship interest in a transfer of concurrent ownership must “result from the terms of the grant rather than by operation, of law.” Peebles, 443 S.W.2d at 470 (quoting Jones, 206 S.W.2d at 801). In other words, Tennessee Code Annotated section 66-1-107 does not apply “where the instrument creating the estate either by express language or necessary implication manifests an intention to create a right of survivorship.” Id. at 471.

The abolition of the incidental survivorship interest in joint tenancies rendered the four unities irrelevant to the question of whether a conveyance creates a joint tenancy or a tenancy in common. This Court has explained:

[T]he common-law unities requisite.to joint tenancy have become academic as applied to [a joint tenancy], a tenancy in common resulting if.no, contrary intent is expressed, whether or not the unities are present. When the intent' to establish an estate by survivorship is clear, the existence or nonexistence of the unities becomes immaterial upon the idea that the rule fails where the reason fails.

Peebles, 443 S.W.2d at 470 (quoting Jones, 206 S.W.2d at 803). Because joint tenancies no longer include a survivorship interest by operation of law, both joint tenants and tenants in common have essentially the same rights, which are the “right to use, to exclude, and to enjoy a share of the property’s income.” Craft, 535 U.S. at 280, 122 S.Ct. 1414 (citing 2 William Blackstone, Commentaries 180,183 (1776)); see 20 AM. JUR. 2d Cotenancy and Joint Ownership § 41 (2015). In sum, at common law, the right of survivorship was the primary difference between a joint tenancy and a tenancy in common, see Craft, 535 U.S. at 280, 122 S.Ct. 1414, but under Tennessee property law, that difference has never existed in the common-law tenancies. See Term. Code Ann. § 66-1-107. Under Tennessee law, if parties seek'to include a right of survivorship in either a joint tenancy or a tenancy in common, they must do so by including clear language to that effect in the granting instrument.

Severability of Joint Tenancy with Express Right of Survivorship

As we have explained, a common-law joint tenancy can be severed, and the right of survivorship destroyed, by the unilateral action of any joint ténant.8 See McLeroy, 163 Tenn. 124, 40 S.W.2d 1027, 1028 (1931); McGhee, 234 S.W. at 509-10; Tindell, 37 S.W. at 1106 (quoting Den, 10 N.J.L. at 45). Because common-law joint tenancies are not recognized in Tennessee, however, the question becomes whether the common-law doctrine of severance applies to a joint tenancy, in which an express *405right of survivorship has been created by the granting instrument. This is a matter of first impression.

Typically, when addressing an issue of first impression, we look to similar cases in other jurisdictions for guidance. Here, that task is complicated by the fact that each state’s property law is comprised of a combination of caselaw and specialized statutes; the relevant caselaw can date back more than 200 years, and the property-law statutes have evolved over the same period. In looking to our sister states for guidance, we will consider first whether a given state’s overall body of property law aligns with ours and then' consider specifically whether its treatment of the issue presented in this appeal is consistent with Tennessee property law.

As noted above, most states have enacted statutes abolishing the common-law rule that a conveyance to, two or more persons will result in a joint tenancy based on the existence of the four unities. Some states accomplished this by enacting a statute similar to the Act of 1784 and Tennessee’s section 66-1-107, in that they prescribe a manner of descent, requiring the interest of a deceased joint tenant to pass to his. heirs (rather than to the co-tenant) at his death “in the same manner as estates held by tenancy in common.” Tenn. Code Ann. § 66-1-107. These statutes sometimes explicitly permit the creation of a survivorship-interest by the .use of express language in the granting instrument.9 Other states’ statutes provide more directly that a joint tenancy may be created only by using specific language indicating that a joint tenancy was intended by the parties.10

States address the severability of joint tenancies by both statutory law and common law. Statutes on'the topic generally permit the ■ severance of a joint tenancy and provide the manner in which such a *406severance may be effected.11 But even states that have not enacted legislation on the severability of joint tenancies have nearly unanimously followed the common-law rule of severance, recognizing that a joint tenant may unilaterally sever the joint tenancy and destroy the survivorship interest, even when the survivorship interest was created by express language in the granting instrument. As the District of Columbia has recognized, “The applicable rule in a large majority of jurisdictions is that either party to a joint tenancy may sever that tenancy by unilaterally disposing of his interest, that the consent of the other tenant is not required, and that the transfer converts the estate into a tenancy in common.”12 Estate of Gulledge, 673 A.2d 1278, 1279-80 (D.C. 1996) (citations omitted); see also Wood v. Pavlin, 467 S.W.3d 323, 324-25 (Mo. Ct. App. 2015) (“A right to sever also is our national norm.”); Herring v. Carroll, 171 W.Va. 516, 300 S.E.2d 629 (1983) (“It is generally, if not universally, recognized elsewhere that a joint tenant may convey his undivided interest in real property to a third person.”).

Michigan law, on which the trial court below based its decision, is unique. It permits the creation of either a common-law joint tenancy or a joint tenancy with full rights of survivorship; Michigan recognizes that the former is severable, but the latter is not. Cooper, supra, at 969 (describing Michigan’s law as “anomalous”). A brief review of Michigan law will illustrate this point.

The “standard” joint tenancy in Michigan “is of the type typically recognized in various jurisdictions,” and it is characterized by the existence of the four unities. Albro v. Allen, 434 Mich. 271, 454 N.W.2d 85, 87 (1990). The Michigan Supreme Court explained that, “[i]n the standard joint tenancy, the right of survivorship may be destroyed by severance of the joint tenancy,” which can happen “by an act of the parties, by conveyance by either party, or by levy and sale on an execution against one of the parties.” Id. (citations omitted). A joint tenancy with full right of survivor-ship, however, is created when the granting instrument includes “express words of survivorship .