This brief legal guide provides information about joint ownership of real estate, and expands upon the information provided in Part I of this guide.
Ways to Hold Real Estate
There are different ways in which two or more persons may own a parcel of real estate. One way is called a "tenancy in common"; another is a "joint tenancy"; and yet another is a "tenancy by the entirety."
What is a Tenancy in Common?
A tenancy in common means that each person owns a particular percentage interest in the real estate. For example, if John Smith and his girlfriend, Mary Jones, hold a deed as tenants in common, it means that each of the two owners owns a 50% undivided interest. John or Mary are each free to give, sell, or bequeath his or her respective rights in the real estate.
What is a Joint Tenancy?
A joint tenancy means that the real estate is held "jointly with right of survivorship." This quoted language is typically the language that is found in a deed that reflects joint ownership. It means that neither John nor Mary can sell the property. If, say, John passes away, then Mary becomes the owner of the property. John's estate will not have an interest in the property.
What is a Tenancy by the Entirety?
A tenancy by the entirety is, essentially, joint ownership, except that it is between two persons who are married to one another. Thus, if John and Mary get married to one another, they may wish to change the deed to reflect their marriage. If the deed now says that the property is owned by "John Smith and Mary Jones, his wife," the addition of those words ("his wife") will reflect that it is a tenancy by the entirety.
What if the deed is silent about joint ownership or the status of the marriage?
If the deed is silent as to joint ownership and is similarly silent as to the parties' marriage to one another, then the property is held as a tenancy in common. Courts often refer to the "strong presumption" of a tenancy in common.
What is the best way to hold a deed?
That depends entirely on what you wish to ultimately happen to the property. In most cases, it makes sense for a married couple to have a right of survivorship, so that if anything happens to either person, the property will pass to the survivor.
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