Tenancy in Common
A tenancy in common is a form of co-ownership with no right of survivorship. In a tenancy in common, each co-owner has a distinct, proportionate, and undivided interest in the property and each owner can only sell, devise, or encumber their share. Without a right of survivorship, a tenant’s interest passes to the tenant’s heirs/devisees upon death, not to the other tenants. Ownership of an undivided interest means that each tenant has an equal right to possess the whole property, even though the tenant may own only a proportionate interest. The presumption is that the percentage of ownership is equally divided among the tenants, unless a contrary intent is expressed in the recorded instrument.
A joint tenancy is a form of co-ownership similar to a tenancy in common except there is a right of survivorship. Each joint tenant has the right of survivorship which means that the “last man standing” becomes the sole owner of the property. Joint tenants cannot devise their share in a will or trust because of the survivorship. If a joint tenant passes away, his or her share will transfer to the surviving tenant(s). Each tenant’s interest must be exactly identical and the four unities must be present (unity of title, time, interest, and possession). In other words, the joint tenants’ interest must be the same in duration, extent, and nature, no joint tenant shall have exclusive possession, the interests of all joint tenants must vest at the same time, and all joint tenants’ interests vest in a single instrument. As a tenancy in common is the presumption unless stated otherwise, the granting instrument (i.e. deed) must expressly refer to survivorship or the estate will default to a tenancy in common.
Tenancy by the Entirety
A tenancy by the entirety is similar to a joint tenancy except it is only available to married couples. Property owned by both a husband and wife is presumed to be held as tenants by the entirety unless there is express language to the contrary. A spouse cannot modify his or her interest in the property in any way without the consent of both spouses. A major benefit of tenancy by the entirety is that the property is protected from the creditors of each individual spouse, and only joint creditors can attack the property.