WAYS OF HOLDING OWNERSHIP
Tenancy in severalty
Tenancy in severalty If a single party owns the fee or life estate, the ownership is a tenancy in severalty. Synonyms are sole ownership, ownership in severalty, and estate in severalty.
The estate of a deceased tenant in severalty passes to heirs by probate
Co-ownership If more than one person, or a legal entity such as a corporation, owns an estate in land, the estate is held in some form of co-ownership. Co-owners are also called cotenants.
Tenancy in common. The tenancy in common, also known as the estate in common, is the most common form of co-ownership when the owners are not married. The defining characteristics are:
two or more owners Any number of people may be co-tenants in a single property.
identical rights Co-tenants share an indivisible interest in the estate, i.e., all have equal rights to possess and use the property subject to the rights of the other cotenants. No co-tenant may claim to own any physical portion of the property exclusively. They share what is called undivided possession or unity of possession.
interests individually owned All tenants in common have distinct and separable ownership of their respective interests. Co-tenants may sell, encumber, or transfer their interests without obstruction or consent from the other owners. ( A co-tenant may not, however, encumber the entire property.)
electable ownership shares Tenants in common determine among themselves what share of the estate each party will own. For example, three co-tenants may own 40%, 35%, and 25% interests in a property, respectively. In the absence of stated ownership shares, it is assumed that each has a share equal to that of the others.
Section 8: Property Rights, Estates & Tenancies 169
no survivorship A deceased co-tenant’s estate passes by probate to the decedent’s heirs and devisees rather than to the other tenants in common. Any number of heirs can share in the ownership of the willed tenancy.
no unity of time It is not necessary for tenants in common to acquire their interests at the same time. A new co-tenant may enter into a pre-existing tenancy in common.
The following exhibit illustrates how tenants in common may transfer ownership interests to other parties by sale or will.
Joint tenancy. In a joint tenancy, two or more persons collectively own a property as if they were a single person. Rights and interests are indivisible and equal: each has a shared interest in the whole property which cannot be divided up. Joint tenants may only convey their interests to outside parties as tenant-in-common interests. One cannot convey a joint tenant interest.
The defining characteristics and requirements of joint tenancy are:
unity of ownership
Whereas tenants in common hold separate title to their individual interests, joint tenants together hold a single title to the property.
Joint tenants own equal shares in the property, without exception. If there are four co-tenants, each owns 25% of the property. If there are ten co-tenants, each owns 10%.
transfer of interest
A joint tenant may transfer his or her interest in the property to an outside party, but only as a tenancy in common interest. Whoever acquires the interest co-owns the property as a tenant in common with the other joint tenants. The remaining joint tenants continue to own an undivided interest in the property, less the new cotenant’s share.
In a joint tenancy, joint tenants enjoy rights of survivorship: if a joint tenant dies, all interests and rights pass to the surviving joint tenants free from any claims of creditors or heirs. In Florida, survivorship must be expressly stated in the deed to be effected on transfer.
When only one joint tenant survives, the survivor’s interest becomes an estate in severalty, and the joint tenancy is terminated. The estate will be then probated upon the severalty owner’s death.
The survivorship feature of joint tenancy presents an advantage to tenancy in common, in that interests pass without probate proceedings. On the other hand, joint tenants relinquish any ability to will their interest to parties outside of the tenancy.
Creation of joint tenancy. To create a joint tenancy, all owners must acquire the property at the same time, use the same deed, acquire equal interests, and share in equal rights of possession. These are referred to as the four unities.
unity of time
all parties must acquire the joint interest at the same time
unity of title
all parties must acquire the property in the same deed of conveyance
unity of interest
all parties must receive equal undivided interests 172 Principles of Real Estate Practice in Florida
unity of possession
all parties must receive the same rights of possession
In Florida, the conveyance must name the parties as joint tenants with rights of survivorship. Otherwise, and in the absence of clear intent of the parties, the estate will be considered a tenancy in common. In addition, a joint tenancy can only be created by agreement between parties, and not by operation of law.
Termination by partition suit. A partition suit can terminate a joint tenancy or a tenancy in common. Foreclosure and bankruptcy can also terminate these estates.
A partition suit is a legal avenue for an owner who wants to dispose of his or her interest against the wishes of other co-owners. The suit petitions the court to divide, or partition, the property physically, according to the owner’s respective rights and interests. If this is not reasonably feasible, the court may order the property sold, whereupon the interests are liquidated and distributed proportionately.
Tenancy by the entireties. Tenancy by the entireties is a form of ownership traditionally reserved for husband and wife, though now available for legally married same-sex spouses in Florida. It features survivorship, equal interests, and limited exposure to foreclosure.
survivorship On the death of husband or wife, the decedent’s interest passes automatically to the other spouse.
equal, undivided interest Each spouse owns the estate as if there were only one owner. Fractional interests cannot be transferred to outside parties. The entire interest may be conveyed, but only with the consent and signatures of both parties.
no foreclosure for individual debts The estate is subject to foreclosure only for jointly incurred debts.
termination The estate may be terminated by divorce, death, mutual agreement, and judgments for joint debt.