Tenancy in common, joint tenancy and tenancy by the entireties, and what happens on death or judgment.
Esshaki Legal Media TeamCurrent as of August 2024
How co-owners hold title determines transferability, survivorship, and exposure
to each owner’s creditors.
Tenancy in common. Separate undivided fractional interests, freely
transferable, descending to heirs. No survivorship. Shares need not be equal. A
creditor of one owner can reach that owner’s interest and force a partition.
Joint tenancy with right of survivorship. On death, the interest passes to
the surviving joint tenants outside probate. Traditionally requires unity of
time, title, interest and possession; conveyance by one joint tenant severs the
joint tenancy as to that interest, converting it into a tenancy in common.
Tenancy by the entireties. Available to spouses in some states. Neither
spouse may convey or encumber alone, and in most of those states a creditor of
one spouse alone cannot reach the property. This is a significant asset
protection feature and a trap for lenders who take a mortgage signed by one
spouse.
Community property in a minority of states governs marital acquisitions with
its own rules on management and disposition.
Partition. Any co-owner may generally compel partition in kind or by sale,
subject to statutes favoring partition in kind for heirs property.
Entity ownership through an LLC displaces these rules with the operating
agreement, which is usually preferable for investment property.