Forms of Ownership

Unless you are single and are buying property by yourself, you will need to decide how you would like to take title. Prepared below are the various types of ownership.

Tenancy in Common

  • The owners can have equal or unequal ownership interests.
  • Regardless of their ownership interests, each owner has the right to possess the whole property.
  • The owners share expenses, rents and profits in proportion to their ownership interests.

    Example 1: Andrew and Bradley are tenants in common. Andrew has a 2/3 interest in the property, and Bradley has a 1/3 interest. Andrew is responsible for 2/3 of the expenses and Bradley is responsible for 1/3 of the expenses related to owning the property. If Andrew and Bradley rent or sell the property, Andrew receives 2/3 of the rents or profits, and Bradley receives 1/3 of the rents or profits.

  • Each owner can sell or mortgage his/her own interest without the other owner's knowledge or consent.

    Example 2: Andrew and Bradley are tenants in common, each owning a ½ interest in the property. Bradley decides that dealing with Andrew is quite the hassle, and he no longer wants to own property with Andrew. Bradley does not want to have a confrontation with Andrew, so Bradley does not tell Andrew about his plans to sell his interest. Unbeknownst to Andrew, Bradley sells his ½ interest to Catherine. Now, to Andrew's surprise, Andrew is a tenant in common with Catherine, each owning a ½ interest in the property.

  • When an owner dies, his/her share passes to his/her heirs or legatees, not automatically to the other owners.

    Example 3: Andrew and Bradley each own a ½ interest in property as tenants in common. Bradley dies. In his will, he leaves his ½ interest in the property to his sister, Catherine. Now Andrew and Catherine are tenants in common, each owning a ½ interest in the property. If Bradley had not left a will, his ½ interest would have passed to his heirs at law.

Joint Tenancy

  • Owners must have equal ownership interests.
  • Each has the right to possess the whole property.
  • The defining element of joint tenancy is SURVIVORSHIP. When one joint tenant dies, his/her interest vanishes and the surviving joint tenant(s) continue to own the property.

    Example 4: Anita, Britney and Celeste own property named Blackacre as joint tenants. Each has a 1/3 interest. Anita dies, and by her will leaves all of her property to her son, David. Anita's will is NOT effective to bequeath her interest in Blackacre. When Anita died, her interest in Blackacre vanished. Britney and Celeste continue as joint tenants, and now each has a ½ interest in Blackacre.

  • Each owner can sell his/her own interest without the other owner’s knowledge or consent, but if he does, that converts the seller's interest into a tenancy in common with respect to the other owner’s interests.

Tenancy by the Entirety

  • This is a special form of joint tenancy that is available only for a husband and wife and only for property that is their primary residence. It has all the same features as a joint tenancy, except that it cannot be converted into another form of ownership without the consent of both parties. That is, the survivorship aspect cannot be destroyed unless both parties consent. Any action that would otherwise change the form of ownership is ineffective unless both spouses agree to it. Therefore, both husband and wife must agree to sell the property, and only a creditor of both husband and wife can enforce a judgment against the property.

    Example 5: Husband and Wife own their home, Blackacre, as tenants by the entirety. Blackacre can be sold only if both Husband and Wife agree and both sign the deed. Neither spouse can sell or encumber his or her interest without the other's consent.

    Example 6: Husband and Wife own their home, Blackacre, as tenants by the entirety. Husband alone borrows $20,000 and does not repay the loan. Husband's creditor cannot enforce a judgment against Blackacre. If Husband and Wife both had borrowed the money, the creditor could enforce its judgment against Blackacre.