Joint Tenancy vs. Tenants in Common After a Lot Merger: What Happens in New Hampshire?

When the same owners merge two lots, one held in joint tenancy and the other held as tenants in common, what happens to ownership? If joint tenancy governs, the surviving owner takes the entire property at death. If tenancy in common governs, the surviving owner shares ownership with the deceased owner’s heirs. Does a lot merger preserve survivorship, convert the combined property into a tenancy in common, or produce some other result? In Moen v. Moen, the New Hampshire Supreme Court answered that question, and the answer matters for New Hampshire landowners, estates, title examiners, surveyors, and estate planners.

Background

Two brothers, Richard and David, owned Parcel A as joint tenants with right of survivorship and Parcel B as tenants in common. Richard named a third brother, Christopher, as his heir. Under that ownership structure, David would receive Richard’s interest in Parcel A at Richard’s death, while Christopher would receive Richard’s interest in Parcel B.

Richard and David later merged Parcels A and B into a single lot. After Richard died, David claimed that survivorship still applied to the portion of the merged land that had originated as Parcel A. If correct, Christopher would have no claim to that portion of the merged property.

Circuit Court

The trial court rejected David’s survivorship claim. It concluded that the merger of the joint-tenancy parcel into the tenancy-in-common parcel reflected an intent inconsistent with preserving survivorship and therefore severed the joint tenancy before Richard’s death. David appealed.

Supreme Court

The New Hampshire Supreme Court affirmed. It explained that, at least since 1972, the court has abandoned the historic “four-unities” test, which required a mechanical analysis of time, title, interest, and possession. Instead, survivorship is a property right created by intent, and it ends when the parties act in a manner inconsistent with its continuation.

Applying that intent-based approach, the Court focused on how Richard and David actually treated the land. Richard alone funded, improved, and carried the combined property. David stopped paying taxes and made no meaningful contributions. The original joint-tenancy parcel was extremely small compared to the tenancy-in-common parcel. Those facts made it implausible that the brothers intended the merger to expand survivorship so that David would take the entire combined parcel at Richard’s death.

Extending joint tenancy to the merged lot would have produced a result inconsistent with the parties’ conduct and with Richard’s estate plan. The Court therefore concluded that the merger reflected an intent to eliminate survivorship, not to enlarge it.

The Court held that the merger severed the joint tenancy. Richard’s interest passed through his estate to Christopher rather than to David by survivorship.

The takeaway is straightforward. Co-ownership doctrines do not operate in isolation from land-use decisions. In New Hampshire, a lot merger can do more than simplify taxes or boundaries. In the right circumstances, it can quietly change ownership and inheritance.

Moen v. Moen, No. 2023-0536 (N.H. Feb. 12, 2025) (order). (Because the Court issued an “order” rather than an “opinion,” the ruling has no precedential authority over other cases, but it may provide guidance on how New Hampshire courts may approach similar issues in the future.)

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