Ways to Hold an Interest in Land – What’s the difference?

By Anton Q. (Tony) Suberlak, J.D.

There are two ways in which more than one person can own an interest in land.

The first way is known as “joint tenants” where both people own the whole property together as if they were one person, kind of like a marriage.

The second way is known as “tenants in common” where each person owns their portion, more like business partners. With tenants in common the split does not have to be equal.  You could have a 49% interest in the property, or even a 1% interest in the property.  The two types of ownership could be represented by the following diagrams:

There are important differences between joint tenancy and tenants in common:

Joint Tenancy

  • Since both people must act as a unit, neither person can sell or mortgage their interest in land without the other person’s agreement. If they do anything with the land they must do it as a team.
  • If one of the two owners dies, then the other person owns the whole property pursuant to an automatic right of survivorship.

Tenants in Common

  • Each person may do what they like with their respective interest in the land without the other person’s consent or involvement.
  • If one person dies, their share must pass through their Will and be distributed to the beneficiaries under that Will. This is true even if the only beneficiary under the Will is in fact the other co-owner.  The ownership share must still pass through the Will and then come back to the other co-owner.  It cannot be simply transferred to the other co-owner.

 

Joint Tenancy – Possible Complications Upon Death

Complications can potentially arise with joint tenancy if one person dies and their Will does not explicitly set out their intention to provide the co-owner with their share of ownership, subject to possible complication below.

At law, there is a general presumption against gifts. For example, if your friend were to hand you $100.00, there is a presumption that that is a trust (similar to a loan) and not a gift.

Applying this to joint tenancy, if you were to die, then automatically the property would be in the other joint tenant’s name.  However, your joint tenant would be presumed to be holding your share in trust for the beneficiaries under your Will—unless your joint tenant could prove, that at the time you gave them this right and that you meant for this to be a gift. If they cannot prove you intended for your share to be a gift, they still get the property in their name, but they will be holding it for the beneficiaries under your Will.

It is very important if you choose to hold property as joint tenants, for you to clarify your intention as to whether your share of the property is intended to be gifted to the co-owner, or whether you intend for the co-owner to hold the property for the beneficiaries under your Will.

Should you choose to hold property as joint tenants, we at Masuch Albert LLP will ask you to sign an additional form clarifying your intention at the time of property purchase, and we recommend that you keep that document in a safe place – generally the same place as you keep your Will.

 

This article is for information purposes only, and should not be construed as legal advice. If you have any questions, we encourage you to consult with one of our lawyers.