Co-ownership in Real Property – The Impact on Title
Understanding the impact of co-ownership on property is crucial for avoiding costly mistakes in real estate transactions. Major life events — such as marriage, divorce, or inheritance — can all significantly affect title and how it’s conveyed. To ensure the right parties are involved and proper procedures are followed, it’s important to grasp the key distinctions between ownership types that come into play when life changes and property conveyance intersect.
Title to real property may be held by sole individuals or entities, termed as sole ownership, or by two or more parties, termed as joint ownership. How joint owners hold title may impact how they convey title when they elect to sell the property, who can convey title if a co-owner passes away, or how property is treated if there is a dissolution of marriage. Depending on your state, the implications in each situation may determine how documents are prepared. A title company may ask for more information to have title conveyed by the appropriate grantor(s) and to also have title held by the grantee(s) pursuant to their wishes based on the permitted state laws.
Understanding the terminology is helpful when considering who may need to execute a conveyance deed or execute a mortgage/deed of trust, or how joint owners may want to take title to real property.
SOLE OWNERSHIP
Sole Ownership is just as it sounds, meaning that one person or entity owns the real property and has complete control over it.
JOINT OWNERSHIP
Tenants in Common is used when co-owners can take equal or unequal shares in the property. See The Law Dictionary. Each co-owner can do what they wish with their share, but only as to their share. For example, a person with a 25% ownership interest in the property can convey their 25% interest (or less) to another person. If a co-owner passes away, their interest will pass to their estate. In this case, the heir or beneficiary of the decedent’s estate will become a tenant in common with the other owners. If the deed is silent to how the co-owners hold title, typically this joint ownership type is viewed to have been created.
Joint Tenancy with the Right of Survivorship allows co-owners to hold title jointly and equally when the four unities are present. These unities are unity of time, unity of title, unity of interest, and unity of possession. See Findlaw. If the four unities are broken, then the co-ownership typically changes to a tenants in common. In states that recognizes Joint Tenancy with the Right of Survivorship, upon the death of one of the owners, that ownership is automatically transferred to the remaining surviving owner or owners.
Tenancy by the Entireties is a co-ownership only available for a married couple. In this joint ownership, each spouse owns the entire estate and on the death of one spouse, the real property remains the sole ownership of the surviving spouse. In states that recognize this joint ownership, the deed may only show that they are a married couple (i.e., husband and wife) without any particular wording. However, if the deed does not identify that they are a married couple may cause the real property to be held as tenants in common. Currently there are 25 states that recognize this joint ownership.
Community Property is property owned in common by married couples, or either, during marriage, when not acquired as their separate property. See The Law Dictionary. Each person has an undivided one-half interest in the property by reason of their marital status. Property that was acquired before the marriage, however, typically remains as their separate property. There are also cases in which certain property that is acquired during the marriage and is placed only in the name of one spouse, may be that spouse’s sole and separate property. In the latter, to assist with making it clear, the other spouse may typically execute a written consent and relinquish title, interest and any rights by executing a disclaimer deed and have the instrument recorded in the county land records. There are currently nine (9) states that are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Take a look at each state’s statutes as to how community property is treated in the state.
Let’s look at a few examples of these joint ownerships in action.
Scenario 1
The parties live in a state that recognizes Tenancy by the Entireties. Jake Smith and Vivian Smith acquired title as husband and wife. They are now selling the property, and the prepared deed may read as follows:
Jake Smith and Vivian Smith, husband and wife, as Grantors, to Monica Walker, a single person and Christopher Walker, a single person, as Joint Tenants with Right of Survivorship, as Grantees.
In this case, presuming both are still alive and are still married to each other, then to convey title, the grantors, Jake Smith and Vivian Smith, should execute the deed conveying title to Monica Walker and Christopher Walker.
As for the grantees, you may have noticed that the marital status also shows for each grantee (i.e., in this case, “a single person”) and how they are to hold title under their joint ownership is specifically identified (i.e., “Joint Tenants with Right of Survivorship”).
Scenario 2
Let’s use the same parties but change the situation slightly regarding the grantors. In this case, Jake Smith and Vivian Smith previously took title to the real property without any reference to their marital status. Now they are selling the property, and the conveyance deed was prepared as follows:
Jake Smith and Vivian Smith, as Grantors, to Monica Walker, a single person and Christopher Walker, a single person, as Joint Tenants with Right of Survivorship, as Grantees.
In most states, in this situation, the grantors are found to hold title as Tenants in Common. As you may recall, if prior to the conveyance Jake Smith passed away, for example, then his interest would go to his heirs or beneficiaries of his estate, depending on the probate laws of the state.
Also, in this situation, we are missing the grantor’s marital status. As a best practice, the parties’ marital status should be reflected on the deed when they acquired title and when they convey title. The purpose of this is so that any marital interest in the property may be addressed. Thus, it may be required that the spouse of the grantor also executes the deed to convey their marital interest in the property to the grantees, depending on your state.
Scenario 3
In this last scenario, what happens if Jake Smith and Vivian Smith, as husband and wife, acquired title but while in title, their marriage is dissolved? Jake Smith now says he wants to sell the property.
In this situation, a complete copy of the final judgment to dissolve their marriage should be obtained from the family court records. Also, as a best practice, the final judgment should be recorded in the county land records. Recording of the final judgment provides notice that the joint ownership was severed and how the property was distributed by the court. It is important to thoroughly read the final judgment regarding who was awarded the real property. For example, the court may order that both parties will continue to hold title, which means they most likely are holding as tenants in common. Alternatively, the court may have ordered one party to execute a deed to convey title to the other party. In the claims department, on occasion, we do find that the court’s instruction to execute, and record, a deed was not completed. This may lead to extra legwork in either having to find the other party for a deed to the other spouse and to have it recorded in the county land records, or to go back to the court for it to enter an order declaring the title is in the spouse and record the new order in the county land records.
CONCLUSION
With everyday life changes, a person may take title as a single person but may be married when they are ready to convey title, for example. From sole ownership to joint ownership, and from marital property to non-marital property, understanding terminology and gathering accurate information to uncover how parties hold title and the proper parties needed to convey title, these all play an important role in real property ownership.
RESOURCES:
Community Property. The Law Dictionary, https://thelawdictionary.org/communityproperty/
Differences between Joint Tenants with Survivorship and Tenants in Common. Findlaw, https://www.findlaw.com/estate/planning-an-estate/whats-the-difference-between-joint-tenants-with-survivorship-and-.html
Difference between Joint Tenancy and Tenancy in Common. The Law Dictionary, https://thelawdictionary.org/article/difference-between-joint-tenancy-and-tenancy-in-common/
This blog contains general information only, not intended to be relied upon as, nor a substitute for, specific professional advice. We accept no responsibility for loss occasioned to any purpose acting on or refraining from action as a result of any material on this blog.
Tags: claims avoidance, property deed, real estate