After successfully completing this topic, you will be able to
• define ownership in severalty, and
• describe the characteristics of each type of co-ownership.
There are two basic types of ownership
• ownership by one person (sole ownership), and
• ownership by more than one person (concurrent ownership).
If only one person owns property, it is called ownership in severalty, meaning it has been severed from ownership with any other person. A person can own any freehold in severalty. Only the owner needs to sign the deed unless the property is the homestead of a married person. In that case the spouse must sign the deed also.
If more than one person owns property, it is co-owned, and is also called concurrent ownership. There are several different ways for concurrent owners to hold title to property.
• Tenancy in common
• Joint Tenancy
• Tenancy by the entireties
A tenancy in common is the most popular form of co-ownership for unmarried persons. Under a tenancy in common, property can be held in equal or unequal undivided interests. Undivided interest means that none of the owners has a piece of the whole, but has a share. Each concurrent owner may will his or her share. A property held in a tenancy in common is inheritable.
A joint tenancy can exist when two or more persons have an undivided interest in real property. When one “partner” dies, his/her share automatically passes to the other parties on the deed, because “right of survivorship” is present. If a joint tenant wills the property to his or her heirs, it will have no effect. There are strict requirements for a joint tenancy.
All parties on the deed must have
• the same right of possession,
• the same degree of interest,
• purchase made at the same time,
• all parties on the same title (deed), and
• specific wording on the deed providing for survivorship.
If one partner’s interest is sold, the new partner becomes a tenant in common.
Example: Four women purchased a vacation home with equal shares as joint tenants. One of the women who had willed her share to her sister died. Another of the women later sold her share to a new partner. After that sale, another of the original women died.
What is the result of these events?
1. When the first woman died, her share passed automatically to the three joint tenants, who then owned it in 1/3 shares. The will had no effect.
2. When the other woman sold her share to the new partner, the new partner became a tenant in common with the other two joint tenants.
3. When the second woman died, her share went to the other joint tenant who now owned 2/3 of the property. The purchaser retained her 1/3 ownership.
A tenancy by the entireties is property ownership by a marriage. Neither owns the property.
The death of one party makes the spouse the immediate owner of the property through survivorship. If the deceased party has willed the property, the bequest will have no effect, since the property is not included in the estate.
A divorce terminates the tenancy by the entireties and creates a tenancy in common.
For Example: John is a divorced man with two grown children. When he marries Susan, they buy a home as tenants by the entireties. Wanting to provide for his children at his death, he wills his interest in the property to them. When he dies, the children will not receive his interest in the home; by owning as tenants by the entireties, his death will make his wife Susan the immediate owner of the property.
Separate property is property that was owned by a person before marrying, or was inherited by a person during marriage. Separate property is not a marital asset that would be split at the time of a divorce.
Florida does not have community property laws, but courts generally subscribe to “equitable distribution.” Normally the assets that a husband or wife owned separately before marriage will remain the property of that person. Marital assets (those acquired during the marriage) will usually be divided equitably, but the court considers other factors such as circumstances of the parties.