dissenting.
Today the majority abrogates a limitation on the ability of a joint tenant to defeat his co-tenant's right of survivorship, which has been the law of this jurisdiction since before statehood. Following the lead of California, and a handful of other jurisdictions already doing so, the majority concludes, for the first time, that this venerable principle of property law-that a joint tenant may not unilaterally destroy the tenancy without alienating his own interest-no longer serves a useful purpose and has, in effect, already ceased to exist. Because I disagree with the majority's understanding of the current state of the law; its policy choice in derogation of the right of survivorship; and its decision to act in the face of existing (and I believe conflicting) legislation, I respectfully dissent.
The right of survivorship is an incident of, and in fact the defining incident of, a joint tenancy. See David A. Thomas, Thompson on Real Property, § 31.02 (David A. Thomas ed. 1981 & Supp.2008). To assert that it does not vest upon creation of the tenancy, as do all other incidents of joint tenancy, flies in the face of established law. See, eg., First Nat'l Bank of Southglenn v. Energy Fuels Corp., 200 Colo. 540, 618 P.2d 1115 (1980) ("Rights in real property held in joint tenancy are fixed and vested in the joint tenants at the time of the creation of the tenancy."); In re Estate of Lee v. Graber, 170 Colo. 419, 462 P.2d 492 (1969) (same); Smith v. Greenburg, 121 Colo. 417, 218 P.2d 514 (1950) (same). While the right of survivorship is not "irrevocably fixed," see Gwinn v. Comm'r of Internal Revenue, 287 U.S. 224, 53 S.Ct. 157, 77 L.Ed. 270 (1982), in the sense that a joint tenant will not actually acquire title to the co-tenant's indivisible share of the property unless the co-tenant dies first, and unless he does so while the joint tenancy remains intact, it has never been within the power of one joint tenant in this jurisdiction, until today, to sever the tenancy and defeat his co-tenant's right of survivorship by merely executing a conveyance of his own indivisible interest in the property to himself.
We have not previously recognized the ability of a joint tenant to unilaterally terminate a joint tenaney except by divesting himself of his joint interest in it. While nothing has prohibited a former joint tenant from reacquiring, as a tenant in common, the proportionate share he formerly held as a joint tenant, his initial conveyance of that interest to a third party terminates the joint tenancy, onee and for all. See Alden v. Alden, 155 Colo. 51, 393 P.2d 5 (1964). Although the majority derisively refers to a re-conveying third party as a "straw man," such a series of conveyances, regardless of any prior agreements or expectations of the parties, is in no sense a meaningless ritual or legal fiction.
To the contrary, until today, unless a joint tenant was actually divested of his interest in the property, whatever his hope or expectation concerning re-conveyance, the joint tenancy was not severed; and if the joint tenant retained an enforceable right of return, he had not been divested of his interest. As the majority acknowledges, this jurisdiction has never before found a severance to occur upon a mere encumbrance of property over which the tenant retained the right of repayment. See Webster v. Mauz, 702 P.2d 297 (Colo.App.1985) ("[MJere encumbering of one's own interest in joint tenancy is insufficient to sever...."); cf. Energy Fuels, 618 P.2d at *9691119 (joint tenancy is severed by operation of law upon execution sale, after default on deed of trust). Because conveyance to a third party always involves some risk, I disagree that the requirement to actually alienate one's interest provides no more protection to a joint tenant than re-conveyance to oneself, or that it amounts to nothing more than a fiction. See maj. op. at 967-968. Ironically, it is the conveyance of property to oneself that has all the earmarks of a fictitious transaction.
Nor do I find support for the majority's assertion that joint tenancy law in Colorado has evolved to a point at which "the polestar by which joint tenancies are now measured is the intent of the parties." Maj. op. at 962. The "modern tendency" with regard to the termination of joint tenancies, to which the majority alludes, see maj. op. at 966, apparently does not refer to unilateral action at all but rather derives from prior decisions finding an effective termination by the agreement of both co-tenants. See Mann v. Bradley, 188 Colo. 392, 535 P.2d 213 (1975)(property settlement associated with divorce proceedings); Mangus v. Miller, 35 Colo.App. 115, 532 P.2d 368 (1974) (same). And while the legislature has sought to avoid the unintended ereation of rights of survivorship since before statehood, see 1861 Colo. Sess. Laws 66, it has never suggested the abrogation of existing restrictions on the termination of such rights. See § 38-88-101, 10 C.R.S. (2003).
To the extent that the majority's conclusion today is intended to represent an evolution of the common law, it ventures into a field long acknowledged to have been preempted by the legislature. See Smith v. Greemburg, 218 P.2d at 519 ("[Tlhe legislature has already pre-empted the field and declared the public policy with respect to the disposition of property held either in joint tenancy or descending under the statute of descent and distribution."). And to the extent that it intends its announcement today to rest on the construction of the statutes already regulating the area, I do not believe its conclusions are supported by accepted principles of statutory interpretation.
More than a half century ago, the general assembly modified the common law by abrogating the prohibition against creating a joint tenancy by the conveyance of a grantor, in part, to himself. See § 4, C40 C.R.S. (1985). Because the current statute, § 38-31-101, 10 C.R.S. (2008), on its face, merely provides an exception to existing limitations for creating a joint tenancy, the majority finds nothing in that statute that would conflict with extending that same exception to severing a joint tenancy. See maj. op. 968. The maxim at law, however, is to the contrary. By expressly articulating one, and only one, exception to the long-accepted rule of property law, the legislature would normally be understood to have rejected other unarticulated exceptions. See Beeghly v. Mack, 20 P.3d 610, 613 (Colo.2001) ("expressio unius exclu-sio alterius "). A rule of strict construction is especially true of property statutes in derogation of the common law. See A.L.H. Holding Co. v. Bank of Telluride, 18 P.3d 742, 745 (Colo.2000).
In context, it seems clear enough that the legislature intended to, and did, eliminate a hurdle to the creation of a right of survivor-ship, as long as the right was created deliberately and with an unchallengeable understanding of the consequences. Eliminating a similar hurdle to the termination of the right of survivorship could easily have been accomplished at the same time by the legislature, had it intended to do so. Doing so without the same evidentiary safeguards, as the majority does today, runs directly counter to the clear legislative purpose. In light of the clear and settled state of the law on this point, it is not surprising that the issue has not before been squarely presented to this court.
The majority looks to other states for support, but even by its count, a mere handful of states have abrogated the requirement that the interest of a joint tenant be conveyed to another in order for severance of the joint tenancy to occur. Tellingly, of the extreme minority-a mere half-dozen or so-Jurisdictions abrogating the requirement, either by case law or statute, virtually all include some recording requirement to ensure that notice *970is at least possible, and to limit abuses.1 Even if I considered the majority's policy choice to be sound, and even if I considered the court free to make that choice in light of existing legislation, I would nevertheless be reluctant to strike down well-established formalities without replacing them with other protections, as the legislature has done with regard to the creation of joint tenancies.
Because I believe the court's action in striking down a principle of property law accepted for scores, if not hundreds, of years and validated by our own legislature is neither wise nor the proper function of the judiciary, I respectfully dissent.
. Although permitting termination of joint tenancies by a self-conveyance comports with a preference for effectuating intention, it does permit one joint ienant to attempt to gain an advantage over the other by executing the self-conveyance and delivering it to an heir or devisee with instructions to record it, but only if, the self-conveyor dies first, in which case
the severance will be effective and the interest will pass by intestacy or devise; if the self-conveyor survives the other joint tenant, the self-conveyance can be suppressed and the survivor take all by right of survivorship. In consequence, some states require recording for effectiveness of self-conveyances.
Thomas, § 31.06(d), at 24.