There are three basic ways for individuals to own real estate: sole ownership, jointly with others, and as tenants in common. The type of ownership determines the rights of the individuals on the deed to sell or will their interest in the property, and to dissolve the tenancy. In a joint tenancy, each owner has an undivided share in the benefits and obligations associated with owning the real property.
A joint tenancy with the right of survivorship means that if one owner dies, that owner’s interest in the property will pass evenly to the surviving owner or owners, without going to probate. The deceased owner’s interest evaporates and cannot be passed down to his or her heirs, unless the heirs were also the co-owners in the joint tenancy. The deceased owner’s liabilities, however, can sometimes remain attached to the property. The title to real property can be cleared by filing an affidavit of death of joint tenant. This allows the surviving joint tenant(s) to retain full property rights without additional paperwork.
To create a survivorship joint tenancy, clear language must be used in the deed. For example: “AB and CD as joint tenants with right of survivorship and not as tenants in common.” In a tenancy in common, co-owners do not always have equal shares in the property. Joint tenancy co-owners almost always have equal shares.
Four conditions must be met to create a joint tenancy: 1) The co-owners must acquire the property at the same time; 2) The co-owners must have the same title to the property. If a condition applies to one owner but not to the other, there is no unity of title; 3) Each owner must have an equal share of the property; and 4) Each owner must have equal rights to possess the whole property. If any of these conditions are not met, the joint tenancy is ineffective and will instead be treated as tenancy in common in equal shares.
If joint tenants agree to sell the property or a portion of it, this agreement must be mutual. The profits from the sale must also be equally divided among the joint tenants. If one of the joint tenants decides to convey his or her interest in the property to a new owner, the joint tenancy is broken, creating a tenancy in common with the new owner.
Please contact an attorney with questions about joint tenancy or any other issues related to