How Should We Take Title?

January 13, 2013
Jack O'Donohue
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Many first-timers are purchasing homes with boyfriends, girlfriends, fiances, siblings, or friends. I recommend that you think about HOW you want to own the property with that person well in advance of the closing. Reading this article is a great start.

Tenants In Common

  1. There are no survivorship rights between tenants in common.
  2. Each co-tenant has a right to possess the whole property and owns an individual part (that is freely transferrable).
  3. The ownership interest may be equal or unequal.
  4. If you want your ownership interest to pass to your heirs at law, and not the crazy person you just bought the house with, this is the option for you.

Joint Tenants with Rights of Survivorship:

  1. The term “rights of survivorship” means precisely what you think it would. If Boyfriend-Girlfriend own the house and Boyfriend dies, Girlfriend owns the house automatically by operation of law. Boyfriends interest does not pass to his heirs at law.
  2. All joint tenants hold title together.
  3. A joint tenant can sell or transfer his/her interest at any point. The resulting effect is that the buyer becomes a tenant in common with the non-selling owner/tenant.

Tenants by the entirety:

  1. Each spouse owns an undivided whole of the property.
  2. Includes rights of survivorship (discussed below)
  3. Creditors of one spouse may encumber that spouses share, but cannot defeat the rights of survivorship.
  4. Arises presumptively in any conveyance to married people unless stated otherwise.
  5. In the case of same-sex couples, a clear statement that the tenancy by the entirety is intended is required.
  6. Neither owner, acting alone, can defeat the right of survivorship by the unilateral conveyance to a third party.
  7. Divorce, death, or agreement by the parties are the only ways to sever this form of tenancy.