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Forms of Ownership of Real Property

Joint Tenancy

Joint tenants own an equal undivided interest in the property. Upon the death of one joint tenant, the surviving joint tenants own the property; the heirs (or devisees if there is a will) do not inherit any interest in the property. Joint tenancy can be severed by one of the joint tenants transferring his or her interest to himself or herself or to a third party.

Tenancy in Common

Unlike a joint tenant, a tenant in common can pass his or her share of a piece of property to his or her heirs or devisees and can encumber his or her interest with a mortgage or lien. Tenants in common can own unequal interests in the property. This type of ownership is frequently used in investments and other business relationships. If no form of joint tenancy is indicated in a deed, the presumption is that the property was taken as tenants in common.

Tenancy by the Entirety

Spouses may take title to their residence by tenancy by the entirety. The deed must expressly provide that the parties are husband and wife and that they are taking the property as tenants by the entirety. The principal advantage to tenancy by the entirety is the ability to protect property from future judgments and liens against only one of the joint owners. This is true if the following applies:

• The judgment or lien was entered after October 1, 1990,

• The judgment or lien did not constitute a lien on the interest of the judgment debtor before the property was transferred to the debtor and his or her spouse as tenants by the entirety, and

• The property was not transferred into tenancy by the entirety specifically to avoid the attachment of a judgment or lien, or to avoid the payment of existing debts beyond the debtor’s ability to pay those debts.

Like joint tenancy, upon the death of one of the spouses, title to the property automatically passes to the surviving spouse.

Have Questions About Real Property?

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