Joint Tenancy

Joint tenancy is a situation wherein two people hold equal ownership in a single piece of real property. Both names are on the deed, and each person has a 50 percent ownership stake in that particular piece of property. If one of the two people dies, then the other person automatically takes complete ownership of the property. To explore this concept, consider the following joint tenancy definition.

Definition of Joint Tenancy

Noun

  1. A form of ownership of real or personal property by two or more people, with each sharing an undivided interest.

Origin

1590    First known use of tenancy

What is Joint Tenancy

Joint tenancy refers to a situation wherein two people split the ownership of a property by putting both of their names on the title. This means that half of the property’s value belongs to each person. Should one of those people die, then the other person takes claim to 100 percent ownership over that piece of property. This is called the “right of survivorship.” Many states actually consider married couples to be joint tenants, even if both of their names are not on the deed.

Difference between Joint Tenants and Tenants in Common

While the two concepts may sound similar, there are differences between joint tenants and tenants in common. For example, joint tenancy ownership must be evenly split among the parties, while tenants in common may be divided into multiple ownerships of varying percentages. Each of the owners of that property are then granted specific inheritance rights in the event that one of the other owners of the property passes away. Another difference is that, while ownership is automatically granted to the other person in a joint tenancy, in a tenants in common situation, the deceased’s ownership interest is instead transferred to his estate.

Another difference between joint tenants and tenants in common is the way in which property can be passed on to different owners. For example, joint tenancy is broken if one of the parties transfers his ownership to another person who is not part of the joint tenancy. If this happens, then all of the parties to the joint tenancy actually become tenants in common. The tenants in common can then pass on their ownership interests to whoever they want, if they wish to dispose of it, and all of the original owners plus the new owners will be tenants in common together.

Joint Tenancy with Right of Survivorship

When someone with multiple children is planning his will, he may consider drafting up a deed that names the children as joint tenants of his property. This deed can then substitute for the need to specifically name any real estate in the will, and should prevent any potential disputes over the property once the parent has passed away. The same can be done for married couples, and those living in a domestic partnership.

These couples can enter into a joint tenancy to ensure that the other party receives the property with no difficulties in the event of their significant other’s death. Those who are in business together, or who purchase a piece of property together, can create a tenants in common to make sure that the business or property passes on to a party’s legal heirs in the event of his or her death. The right of survivorship refers to what happens to an individual’s interest in the property should he die. In a joint tenancy with right of survivorship, the deceased party’s interest automatically transfers to the other owners of the property, rather than to his heirs.

Tenants in common can be tricky, however, because these parties do not have default rights of survivorship. Unless a will is drafted up that specifically states who will get the parties’ interest in the property upon their deaths. Should any party in a tenants in common situation wish his share to go to another tenant, he must specify that in his will, or other legal document. Otherwise, his interest passes to his heirs.

In fact, another way of saying “joint tenancy” is “joint tenancy with right of survivorship.” Those who are unsure about whether they want to set up a joint tenancy or tenants in common should consult with an estate planning attorney to determine which situation would better suit their needs.

Pros and Cons of Joint Tenancy

As with anything else, there are pros and cons of joint tenancy. It is best for those who are weighing their options to be aware of the positives and negatives of joint tenancy, or other forms of ownership, in order to determine which setup is right for them and their property. What follows is a short list of some of the pros and cons of joint tenancy. Depending on the situation, a joint tenancy may be more of a hassle than it is worth to the partners.

Equal Responsibility (Pro)

When a married couple or two business partners own an asset in a joint tenancy, then both individuals share equal responsibility for that asset. What this means is that neither party can take on a debt without putting the other in debt as well. For instance, a husband who intends to divorce his wife cannot take out a loan against the couple’s home for the sole purpose of putting his wife in debt, because he will be just as responsible for paying the loan back as she will be. On a similar note, a wife cannot lease part of the property without sharing the profits with her husband. Equal responsibility means that if one party profits, the other profits, and if one party incurs debt, the other party incurs an equal amount of debt as well.

Probate Court (Con)

When a person passes away, his will (if he has one) is reviewed by a probate court. The purpose of a probate court is to determine whether or not the will is legally valid, as well as what kinds of liabilities and assets the deceased had upon his passing. The person’s assets are immediately frozen upon his death, and only after all of his debts have been paid are the remaining assets divided amongst his heirs.

If, however, the person dies without a will, the process becomes more complicated because the court has nothing to refer to insofar as how the deceased wanted his assets divided. Further, the freezing of the person’s assets can become a significant problem for his surviving relatives, who may need to sell them to pay his immediate outstanding debts, or for his burial expenses.

For example:

If brothers Max and Joe own a business together, and Max dies, Joe may need to liquidate some of the company’s assets in order to pay the bills and keep the business running. If Max’s interest in the business assets is frozen, Joe will need to have them released by the probate court before acting. The probate process, like most other court proceedings, can take weeks, months, or even years to settle. This means that it can take even longer for heirs to receive their inheritances.

If, however, the brothers own the business in a joint tenancy, Max’s interest will automatically be transferred to Joe upon Max’s death – without going through the probate court.

Unstable Relationships (Con)

In an unstable relationship, be it business or personal, it is not a good idea for both owners to have equal ownership over a property. This is because neither party can sell the asset, or take out a loan against the property, without having the other person’s consent first. In an unstable relationship, wherein the parties have ceased to communicate, this can make matters incredibly difficult when it comes to determining what to do with the property.

In some states, if a parent has a joint tenancy with a child, the parent needs to not only get consent from the child, but from the child’s spouse as well before selling that asset. If the parent has an unstable relationship with the child, and the two do not speak, it may become impossible for the parent to gain any kind of control over the asset.

Surviving Partner (Con)

A business or property interest held in joint tenancy automatically transfers to the surviving partner, when the other partner passes away. This means that both partners should consider that they will lose complete control over the asset should they die – and cannot leave their share to their heirs. The surviving partner can do whatever he wants with the asset, even sell it or bequeath it to something of his choosing.

Joint Tenancy Example in a Domestic Partnership

An example of joint tenancy can be found in a case that involved a domestic partnership that went south. In November of 1992, Susan Leone and Charles Ollivier bought a home as a joint tenancy. The two lived together as an unmarried couple after purchasing the property. Susan had used $90,000 of her own money to pay for the property, and she also incurred expenses related to construction and closing costs. All totaled, Susan spent almost $230,000 of her own money on the property.

Charles, however, allegedly did not spend any of his own money on the property, nor any of the costs associated with it. If he did, it was nothing close to what Susan had spent. The couple eventually broke up, and after the breakup, Susan continued to live in the home. Charles, however, was never asked to take his name off of the deed.

Susan died suddenly in February of 2008, and Gloria Trotta, the executrix of Susan’s estate, sued Charles, alleging that he was unjustly enriched, having benefitted from Susan’s death, inheriting the full ownership of the property. She also sued him for $7,500 to cover the taxes and other expenses spent on the property by Susan’s estate, following her death. Charles asked the court to dismiss the claim, and the motion was granted.

Gloria appealed the decision, and the appellate court determined that the dismissal of the entire case was too broad, as it was clear that Charles had been unjustly enriched when Susan’s estate continued to pay the expenses for upkeep of the property. The appellate court reversed the dismissal and modified the ruling. Recognizing that, in a joint tenancy, the surviving partner automatically inherits the deceased partner’s interest, regardless of how much he may have contributed to the property in the past. In order to change that, Susan and Charles would have needed to dissolve the joint tenancy, and change the deed.

The appellate court did, however, rule that the expenses paid by the estate after Susan’s death had indeed unjustly enriched Charles, as ownership of the property had already passed to him. He was ordered to reimburse the estate the $7,500 for those expenses.

Related Legal Terms and Issues

  • Asset – Any valuable thing or property owned by a person or entity, regarded as being of value.
  • Carrying Charges – Expenses associated with maintaining a home or property.
  • Deed – A legal document declaring the ownership of property.
  • Executrix – A female appointed by someone to carry out the terms of his will upon his death.
  • Liabilities – A company’s legal obligations or debts that come up during the course of business
  • Liquidate – To settle or pay a debt by selling an asset.
  • Ownership Interest – The amount of ownership someone has in a piece of property.

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