Joint ownership of property describes two or more people who own real or personal property together. There are three types of joint ownership in Florida:
- Tenants in Common
- Joint Tenants with Right of Survivorship
- Tenants by the Entireties
Each type of joint ownership has different legal consequences for estate planning and asset protection.
Tenants in Common
The term “tenants in common” means two or more owners who each have a separate interest in the property.
Several people may own equal or unequal interests in property as tenants in common. Each of the co-tenants has control over their own share of the property.
With tenants in common, an owner can sell or pledge their interest in the property to a third party without the consent of the other co-owners. The death of an owner results in their separate share passing according to their will. The transfer of title after death requires probate.
A tenancy in common provides no asset protection. A judgment creditor may execute a judgment against the debtor’s interest in tenants in common property. In that case, the creditor may acquire the debtor’s interest with the other owners.
Joint Tenant with Rights of Survivorship
Joint tenants with survivorship is ownership by two or more persons with testamentary instructions. With joint tenants with right of survivorship, the interest of a deceased owner immediately transfers to the surviving owners. This type of ownership is often abbreviated as JTWROS.
A joint tenancy with rights of survivorship is like tenants in common in that each co-owner has a separate, divisible interest in the property. Each owner may sell or pledge their separate interest. A creditor may execute a judgment against the interest of either of the joint owners.
Joint tenants with right of survivorship is common when multiple owners are part of the same family. It is efficient for estate planning because a deceased owner’s interest passes without probate to other family members who share ownership.
Joint tenants with right of survivorship does not protect the property from creditors of the owners while they are alive.
Tenants by the Entireties
Tenants by the entireties refers to a married couple owning property jointly with the element of survivorship. A tenancy by entireties is essentially a joint tenancy with the right of survivorship between spouses. Only two people may own property as tenants by entireties, and those two people must be married.
Tenants by entireties has the same testamentary effect as joint tenants with the right of survivorship because when one spouse dies their share of the property automatically passes to the surviving spouse without probate.
However, tenants by entireties differs from other forms of joint ownership because neither of the two owners may sell or pledge their interest without the consent of their spouse. Tenancy by entireties is based upon legal tradition in English law as adopted by the United States courts. The tradition is that the two spousal owners hold an indivisible joint interest in the property. The two spouses must act jointly to sell, convey, mortgage, or otherwise change property ownership.
Tenants by entireties provides asset protection benefits. A creditor may not garnish or levy upon tenants by entireties property to collect a judgment against either spouse. But a creditor may still execute against tenants by entireties property to collect a joint judgment against both spouses.
Spouses may choose to own property either by the entireties or as joint tenants with survivorship. In Florida, real property owned by two spouses is presumed to be owned by the entirety. There is a statute that presumes marital bank accounts are owned as tenants by entireties unless the spouses indicate otherwise. Spouses must show their intent to own other joint property as tenants by entireties for the property to have asset protection benefits.
How to Terminate Joint Ownership of Property
The way to terminate joint ownership of property depends on the type of joint ownership used.
Terminating a Tenants by Entireties Interest
Termination of tenants by entireties ownership requires the joint action of both spouses. Neither of the spouses alone may terminate tenants by entireties ownership without the other spouse’s consent.
Terminating Tenants in Common or Joint Tenants with Right of Survivorship
Termination of other forms of joint ownership is more complicated.
Owners of tenants in common or joint tenants with the right of survivorship property may want to terminate joint ownership for several reasons. For example, one of the owners may want to terminate joint ownership to liquidate their investment or gift their share of the property to a family member. People may want to terminate their joint ownership because they disagree about what to do with property or they do not get along personally with the other owners.
One owner of jointly owned property may not physically divide joint property and sell just their part of the property. A joint owner of real estate cannot sell their part of the physical property without dividing the property into separate legal descriptions.
If one owner transfers their intangible interest in tenants in common property or joint tenants with right of survivorship property to a new third party, the recipient of the interest will own an interest in common with the other original owners.
A third party buyer rarely would want to purchase only part of a property title. In the case of jointly owned real estate, the typical solution is a partition of the property leading to a sale.
A partition action is a lawsuit to force the sale of jointly owned real property. A successful partition causes the property to be sold and the sale proceeds divided among the co-owners.
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