There are three basic ways to own property: individually, in joint names with others, and contractually. The type of ownership determines the rights of the individuals on the deed to sell their interest in the property, to will it, or to eliminate their interest. A joint tenancy is a type of concurrent estate in which property is owned by more than one person at a time.
A few states consider the phrase ‘joint tenancy’ to be synonymous with ‘tenancy in common.’ For the most part, though, tenancy in common is held when the co-owners of the property are not married or have contributed different amounts to the purchase of the property. The co-owners in tenancy in common contracts are regarded by law as owning separate and distinct shares of the same property.
In a joint tenancy, each owner has an unrestricted right of access to the property, a right to any profits gained from the property, and each owner has a right of contributions for the cost of owning the property.
A joint tenancy with the right of survivorship means that if one owner dies, that owner’s interest in the property will pass to the surviving owner or owners, without going to probate. The deceased owner’s interest evaporates and cannot be passed down to his or her heirs, unless the heirs were also the co-owners in the joint tenancy. The deceased owner’s liabilities, however, can sometimes remain attached to the property.
In a joint tenancy, the title to real property can be cleared when an affidavit of death of joint tenant is filed. This allows the surviving joint tenant to have full property rights without additional paperwork.
To create a joint tenancy, clear language must be used in the deed. For example: ‘AB and CD as joint tenants with right of survivorship and not as tenants in common.’ In a tenancy in common, co-owners do not always have equal shares in the property. Joint tenancy co-owners have equal shares.
Four conditions must be met to create a joint tenancy: 1) The co-owners must acquire the property at the same time; 2) The co-owners must have the same title to the property. If a condition applies to one owner but not to the other, there is no unity of title; 3) Each owner must have an equal share of the property; and 4) Each owner must have equal rights to possess the whole property. If any of these conditions are not met, the joint tenancy is ineffective and will instead be treated as tenancy in common in equal shares.
If joint tenants agree to sell the property or a portion of it, this agreement must be mutual. The profits from the sale must also be equally divided among the joint tenants. If one of the joint tenants decides to convey his or her interest in the property to a new owner, the joint tenancy is broken, thus creating a tenancy in common.
Tenancy in common is also created by a deed, will, or operation of law. The tenancy in common differs from the joint tenancy in that owners do not have to own equal shares of the property. Tenants in common are also able to dispose of their shares without dealing with the restrictive conditions of a joint tenancy. The right of survivorship is not written in to the tenancy in common, which means that the deceased person’s shares will be passed to the heirs.