By Rebecca N. Ciupak
For many people, one of the biggest milestones in life is buying a home, and that moment becomes even more special when it involves buying a home with a significant other. But did you know that there are several options for dividing ownership of property where more than one person is involved? In fact, the property rights an individual holds after purchasing property often hinge on which form of ownership the parties choose.
Although not the sole forms of shared property ownership, joint tenancy and tenancy in common are two of the most common classifications of ownership of a property. Knowing the difference between the two is vital and could save you a great deal of legal and financial difficulty in the long run. In Georgia, unless explicitly stated otherwise, all tenancies are presumed to be tenancies in common.
A joint tenancy creates an equal share in the entire property that is being purchased. This means that where two individuals enter into a joint tenancy, each individual has a 50% share in the entire property. Unique to a joint tenancy are the "four unities." For a joint tenancy to be created, there must be unity of time, unity of interest, unity of title, and unity of possession. In other words, title to the property must be acquired by each individual at the same time, with an equal interest in the property, conveyed through the same instrument or deed, and each tenant must have an equal and undivided possession to the property.A key difference between a joint tenancy and tenancy in common is that tenants in common do not necessarily have equal shares in the property. Ownership interests among multiple owners as joint tenants in common may be split into any number of ratios, unlike joint tenancy which requires the titleholders to have equal shares in the entire property. A tenancy in common may be advantageous for individuals who will be contributing unequal portions of the purchase proceeds into the home, as the share can be pro-rated based upon each owner's contribution to the purchase of the property. It is important to note, however, that a smaller ownership interest does not mean limited rights to the property. A tenant in common, no matter the interest owned, may still access the entirety of the property. In contrast to a joint tenancy, a tenancy in common may also be created through different conveyances.
Arguably the most significant difference between Joint Tenancy and Tenancy in Common is the option to include a right of survivorship. Right of survivorship provides that, if one owner dies, the surviving owner(s) will absorb the deceased owner's share of the property by operation of his or her death. In turn, this also means that the deceased owner's share does not pass through his/her estate in probate. Where the tenancy does not include the right of survivorship, such as in a tenancy in common, the death of one party has the effect of transferring the rights of the decedent tenant through his or her estate to his or her beneficiaries or heir(s) at law. Creating a joint tenancy with right of survivorship is a way many married individuals who own property together avoid probating ownership of their shared property upon the death of one of the spouses.
There are also substantial differences in a party's rights when it comes time to sell or transfer the property, depending on the type of tenancy that has been created. Under both options, when selling the entire property, each joint owner is required to sign the deed upon transfer. When property held by individuals as tenants in common is sold, the proceeds are divided based upon the proportion of share that each individual holds. In a joint tenancy, proceeds are split equally as joint tenants will always have the same share in the property. Most notably, a tenant in common may freely transfer or sell his or her share in the property. On the other hand, any action taken by a joint tenant that is inconsistent with the joint tenancy will extinguish the joint tenancy, and the tenancy will become a tenancy in common with no right of survivorship.Despite the option individuals ultimately choose for owning jointly held property, it is important that this conversation is had up front. Neglecting to weigh the pros and cons of both a joint tenancy and tenancy in common may cause unnecessary headaches in the long run.
Rebecca N. Ciupak is a recent graduate from the University of Georgia School of Law (Class of 2020) working in the offices of Flint, Connolly & Walker LLP. If you need advice or assistance regarding real estate or other legal matters, the attorneys at Flint, Connolly & Walker, LLP have the knowledge and expertise to assist you.