How should I take title to my real estate?

Suppose you are buying property with a friend, fiancé, relative or spouse. Did you know there are different types of joint ownership? Your choice has serious consequences; both on your estate, if you die, and on your rights while you live. There are three common types of joint ownership known as tenancies - all created in the deed giving you title. They are tenants in common, joint tenants and tenants by the entirety. These tenancies date their beginnings to medieval England and are best understood by examining the differences between them.

Tenants in Common The law presumes tenants in common unless the deed you receive specifies otherwise. If one owner dies the property passes to his heirs, not necessarily the survivor. A tenant in common may sell his interest without approval of the other owner. Unless specified otherwise, the law assumes you meant to have equal ownership.

Tenants by the Entirety Tenancy by the entirety is only possible when the joint owners are husband and wife. Tenants by the entirety provides for a common law right of survivorship. The property goes automatically to the surviving spouse. No Will, probate or other legal action is necessary. One spouse can not use a Will to leave an interest to someone else.

This tenancy also follows the ancient legal theory that a married couple is one entity. Therefore, one owner may not convey an interest without the other. A creditor with a judgment against one of the owners can not collect it from entirety property. If there is a judgment against one spouse, the settlement attorney will ask for a continuous marriage affidavit from the seller.

Upon divorce, tenancy by the entirety automatically converts to tenants in common.

Joint Tenancy Joint tenancy is similar to tenants by the entirety but the co-owners are not married. Joint tenancy includes the common law right of survivorship, provided it is set out in the deed. Upon death of a joint tenant, title remains in the surviving joint tenant without further action. You can't leave joint tenancy property to someone else in your will.

There are some important differences. Joint tenants are not married so they are not treated as one legal entity. One owner may petition the court to divide the property or order its sale. A judgment creditor may also petition the court to divide the property and collect the judgment from one of the owner's shares.