Last week in the Legal Corner we covered freehold and nonfreehold estates. The discussion described in some detail the interest the owner or an individual leasing from the owner could have in the estate property. Our focus this week is on concurrent estates.
Concurrent estates are created when two or more individuals have ownership or possession of property simultaneously. Generally each owner of a concurrent estate has a fee simple interest in the property. The shared interest in the property is for an indeterminable length of time which usually means for the life of the property owners. There are three more common forms of concurrent estates: Joint Tenancy, Tenancy by the Entirety, and Tenancy in Common.
Joint Tenancy occurs when two or more individuals (joint tenants) co-own a piece of property. As a result, each joint tenant will have an undivided interest in the entire estate. When one of the joint tenants dies, the surviving owners will own the entire property based on the right of survivorship. The right of survivorship determines what happens to a co-owned property after one of the owner dies. The right of survivorship entitles the surviving co-owner or owners to the dying owner’s share of the property. This means the dying owner’s share of the property will not be passed to his heirs. Joint tenancy in an estate has to be created by a deed or a will, and there are normally two or more individuals that are receiving the property as grantees or devisees.
Joint tenancies and the right of survivorship are normally used to prevent the heirs of the co-owners of the property from taking the land by inheritance. This will allow only the surviving owners of the property to have an interest and possession of the property without any outside interference. A joint tenancy can be terminated if one of the following occurs: a co-owner transfers his or her property to another individual other than a co-tenant, the co-tenants die simultaneously, or by a suit of partition. A suit of partition occurs when one of the co-tenants files a suit in court requesting that the termination of the tenancy and therefore the partition or division of the property.
Tenancy in common transpires when co-tenants each own an undivided interest in the property, but the interest is separate and distinct. When an owner’s interest is separate and distinct he or she does not own the whole property like in a joint tenancy. Thus, the owners have the right to sell or transfer their interest in the property. Each tenant in a tenancy in common estate does have the right to possess and enjoy the entire property, but do not have the right to sell or transfer the entire property. A tenancy in common is terminated by partition and when all tenants agree to sell the property and transfer the title to one person.
Tenancy by entirety and joint tenancy are similar estates, because they both contain the right of survivorship for the owners. However, in order for there to be a tenancy by entirety by tenants have to be legally married. Each spouse will have an undivided interest in the entire estate. Upon the death of one spouse the surviving spouse will take the entire property and no interest is transferred to heirs. A tenancy by entirety is terminated when one of the following occurs: the death of either spouse, a divorce, or partition.
This article does not include all of the detailed requirements and rules related to concurrent estates. If you have any additional questions about your real property, your interest in the real property, or how it should be transferred to another person, please consult an attorney.
Bellonora McCallum is an attorney at the McCallum Law Firm, PLLC, in Rockingham and Laurinburg. Reach her at 910-730-4064 or visit www.mccallumlawfirm.com