Joint Tenants or Tenants in Common: Knowing the Different Types of Tenancies
To be tenants in common or to be joint tenants: that is the question. How to be vested with a property is the most important decision two or more buyers will make when purchasing a property, and purchasers should be knowledgeable about the different types of tenancies, and choose wisely.
Discussing and deciding on which type of tenancy would be most beneficial to buyers is crucial, and it’s best decided by looking at the circumstances of the purchase, looking at whether it is an investment, estate planning, and principal residence. Also, the relationship of parties (e.g. siblings, parents, married and children, etc.) should be considered.
In Colorado, the default tenancy is “Tenancy in common,” which is a form of ownership whereby co-tenants own a fractional share of the undivided property. Following the death of one of the ‘tenants in common’, there will be no transfer of the property. Instead, that tenant’s interest in the property becomes an asset of the deceased’s estate, and it’s to be passed on to heirs or devisees. Generally, tenancy in common is used when co-tenants are unrelated, but this isn’t always the case. Unrelated investors may decide that they’ll take the property as tenants in common they would like to have the option to freely convey their interest in the property to third parties.
Another type of tenancy is ‘joint tenancy (with the right of survivorship)’. Joint tenancy is a situation where each joint tenant owns an undivided whole of the joint property, rather than a fractional part of the property.
Creating an estate in joint tenancy means that specific language must be used in the deed, demonstrating the intent to create a joint tenancy. This can be accomplished by utilizing phrases such as “as joint tenants with the right of survivorship or “in joint tenancy with the right of survivorship” or “JTWROS.” Joint tenancy is frequently used among family members when deciding part of a family’s estate planning. The property does not pass to joint tenant(s) by law with the death of the joint tenants. Upon the death of a joint tenant, surviving tenant(s) become sole owners(s) of property. Survivor(s) don’t take on liens or interests of the deceased, which distinguishes it from a tenancy in common.
Notwithstanding, joint tenancies can be severed through a conveyance from one joint tenant to a third party. With this action, third parties become tenants in common with the surviving joint tenants. This action also dismisses any rights of survivorship that make a joint tenancy attractive.
Selecting a type of tenancy to take title to property can be a difficult and lengthy process for many purchasers. Brokers aren’t the professionals to look to when examining tenancy options. Instead, buyers interested in discussing estate planning, legal matters or tax matters, should contact title insurers who can offer insight on legal and tax consequences. Either way, brokers, and buyers should possess a basic understanding of the different types of tenancies.
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