Joint tenancy vs. tenants in common

Written by sylvia cochran
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Joint tenancy vs. tenants in common
(property image by Christopher Hall from Fotolia.com)

The question of joint tenancy versus tenants in common arises in real estate. It specifically deals with the way a piece of real property is titled. Joint tenancy is synonymous with the right of survivorship, and this provides a legal backdrop against which a person's property is divided among heirs. Being tenants in common lessens the hold each person has on the property. At the same time, it also has the potential to create problems when it comes to legal responsibility.

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Significance

The designation of joint tenancy vs. tenants in common provides different rights and assignations of duty. In some cases, it can effectively prevent the filing of lawsuits involving the ownership of a piece of property.

Features

Joint tenancy provides equal, unlimited and free access to the real property in question to all parties. For example, if you need your father's signature on the mortgage that secures your home, and if you choose to have the property titled as a joint tenancy, both you and your father have equal rights to enter the house at any time. If only you live there, and you father lives somewhere else, this kind of title can become a burden if he comes in without invitation, comes in during your absence, or makes modifications to the property you did not authorise.

Benefits

The benefits of holding a property as tenancy in common come into play when two or more individuals buy a piece of real estate, but each person contributes a different amount of money. In this designation, each party to the transaction holds a fiscally apportioned interest in the property, not a 100% unlimited right to access.

Warning

Choose a tenancy in common only if you have made out your will and the other individuals who are party to the real estate transaction have done the same. Ideally, each member of a tenancy in common should will their interest in the property to the survivors, in case of his death. As the Realty Times points out, if anyone on the title dies intestate, his interest in the real estate becomes part of his personal estate and passes on to anyone who can place a legal claim to it. This can lead to lengthy legal battles when the new owner of the property interest wants to force a sale or seek other fiscal recompense. A tenancy in common may also become a reason for lawsuits when the titling is considered an effort to circumvent laws governing real property conversions from commercial to residential real estate, as outlined on the TIC Lawyers site.

Misconceptions

It is a common misconception that a joint tenancy requires each person named on the title to equally contribute to the upkeep of the property. This is not the case. Instead, one or more owners may decide to only reap the benefits of the property but not share in any of the expenses.

Prevention/Solution

Do not apply for a title of joint tenancy unless you are doing so jointly with the person to whom you are legally married or legally committed via a civil union. If you are simply living together---colloquially known as "shacking up"---and do not know in the long run where the relationship is headed, applying for a tenancy in common titling of the real property is a better solution. The Massachusetts Association of Realtors details exhaustively the advantages and disadvantages of titling a property in joint tenancy.

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