Tenancies in Oregon
Contents
Overview
Tenancy by the Entirety
Creation Language
Joint Tenancy with Right of Survivorship
Creation Language
Tenancy in Common
Other
Vesting • In Oregon, title may be held by:
An Individual - An individual may hold title in his or her name only, regardless of whether or not he/she is married – e.g. “Jane Smith, an individual”.
Tenants by the Entirety - A conveyance to a husband and wife creates a tenancy by the entirety, unless the conveyance expressly declares otherwise – e.g. “John Smith and Jane Smith, husband and wife, as tenants by the entirety”. A husband and wife may also take title as tenants in common (discussed below).
Tenants in Common - A conveyance to two or more persons who are not married creates a tenancy in common in which each has (unless otherwise stated) an equal undivided interest in the property, unless the conveyance expressly declares that the parties intend to create a survivorship estate (discussed below) – e.g. “John Smith and Robert Jones, as tenants in common, each as to an undivided 50% interest”.
A Survivorship Estate - It is possible for two or more persons who are not married to hold title as tenants in common with a right of survivorship, as long as the survivorship declaration is expressly contained in the deed – e.g. “John Smith and Robert Jones, as tenants in common with right of survivorship”. A Life Estate – A life estate is typically created to protect a person’s right to live on property during that person’s lifetime and, on that person’s death, to have the property pass to another – e.g. “Jane Smith, for the term of Jane Smith’s life, then to Stephanie Smith”.
Registered Domestic Partners - Registered domestic partners may take title as (i) tenants in common– e.g. “Jane Smith and Mary Jones, registered domestic partners, as tenants in common, each as to an undivided 50% interest”, or (ii) in a survivorship estate similar to that of a tenancy by the entirety – e.g. “Jane Smith and Mary Jones, as registered domestic partners with right of survivorship”.
A Same Sex Married Couple - Same sex married couples may take title as (i) tenants in common – e.g. “John Smith and Robert Smith, a married couple [or “husband and husband” or “wife and wife” if females], as tenants in common, each as to an undivided 50% interest”, or (ii) in a survivorship estate similar to that of a tenancy by the entirety – e.g. John Smith and Robert Smith, a married couple [or “husband and husband” or “wife and wife” if females] with right of survivorship, or (iii) as tenants by the entirety – e.g. “John Smith and Robert Smith, a married couple [or “husband and husband” or “wife and wife” if females], as tenants by the entirety”.
An Entity - A registered entity, such as a corporation, limited liability company or partnership, may hold title. Title should be held exactly as the name is registered with the Oregon Secretary of State – e.g. “Smith & Jones, LLC, an Oregon limited liability company”.
In a Representative Capacity - Title may sometimes be held by an individual or an entity in his/her or its representative capacity, such as the trustee of a trust – e.g. “John Smith, Trustee of the Mary Jones Trust”. However, personal representatives of decedents do not hold title, which remains in the decedent’s estate, even though the personal representative is typically shown as the grantor of the estate’s deed by common practice in Oregon. Likewise, guardians and conservators do not hold legal title, which remains in the incapacitated person.
T/E with other tenancies
The general rule is that every conveyance of real property to two or more persons creates a tenancy in common unless a clear intention to take with a right of survivorship is expressed in the conveyance or the grantees are spouses. ORS 93.180.
A conveyance "to A, and to B and C, husband and wife" would vest an undivided one-half interest in A , and an undivided one-half interest in B and C, as tenants by the entirety. Adamson v. Adamson, 273 Or 382, 395, 541 P2d 460 (1975).
If the conveyance is intended to vest spouses as tenants in common, this contrary intention must be expressly stated to overcome the presumption of a tenants by the entirety for spouses.
This looks like what we have here. The property was conveyed to A, B, C, without mention of the form of tenancy; however, B & C were spouses at the time of the conveyance. Therefore, just as in Adamson v. Adamson, an undivided one-half interest is vested in A and an undivided one-half interest is vested in B & C as tenants by the entirety. This is in part due to the fact that there was no language to the contrary included in the deed to overcome the presumption that B & C (spouses) should not take title as TBE.
