How should we hold title to the property?

Typically, two or more individuals hold title in one of the following forms known as “common law tenancies.” Each form of ownership has different rights that become especially important in the case of the death of one of the owners.


1. Tenants in Common

Except in the case of husband and wife, Tenancy in Common is the simplest and most common form of joint ownership. It is an ownership of real estate by two or more persons, each of whom has an undivided interest (no one owns any particular portion of the property but is responsible for a portion of the rent and proceeds upon sale), without the right of survivorship. Upon the death of one of the owners, the ownership share of the decedent is inherited by the party or parties designated in the decedent’s will. Tenants in Common can sell their interests without the consent of the other co-tenants and upon death, the interest of a Tenant in Common passes to his or her heirs, either by will or in accordance with applicable law.


2. Joint Tenancy with the Right of Survivorship

In a Joint Tenancy, the owners of the property have the same interests and identical rights to the property as well as the “right of survivorship.” This means that when a joint tenant dies, his or her interest is automatically extinguished. As a result (unlike Tenants in Common), no interest exists which may be passed on after death by will. Likewise, no dower or courtesy can attach. Further, all un-foreclosed liens of one of the joint tenants placed on the land are extinguished. The same result occurs to any easements or leases which were granted by one of the joint tenants without the conveyance by the other joint tenants. Because no interest passes after death, there is no need for probate; the surviving tenant(s) retain the property.


3. Tenancy by the Entirety

A Tenancy by the Entirety is described as an estate that exists only between husband and wife with equal right of possession and enjoyment during their joint lives and with the right of survivorship – i.e., when one dies, the property goes to the surviving tenant. Recognized in some states. This form of tenancy is available only to a husband and wife. This anomaly arises from a “legal fiction” developed by the common law which holds that upon marriage a husband and wife merge into a single legal entity. This tenancy offers greater protection against creditors than does a Joint Tenancy because in most cases a judgment cannot attach to the property as a lien if it is held as a Tenancy by the Entirety unless the judgment is against both the husband and the wife. Thus, the debts of one spouse. A judgment against only one spouse will not be enforceable against the property in most cases.