Contents
Tenancy by the Entirety
Joint Tenants with Right of Survivorship
Creation
Tenancy in Common
Overview
Tenancies are the way in which one or more grantees hold title. They originally existed at common law, but several states have modified these by statute and case law.
Common Types
There are several forms of tenancy recognized at common law. Below are the most common that are still in use today although not all exist in every state.
Tenancy in Severalty
This is the common law name for when a property is owned by one individual or company. Although the term is not common, this form of tenancy is common.
Tenancy by the Entirety
This is common law tenancy reserved for married couples. It has been abolished in about half of the states. In the state where it still exists, married couples are usually presumed to take title this way. A few states require specific language to create this tenancy between married couples.
In this form of tenancy, spouses are considered to exist as a single undivided entity unique and different from each spouse. In most states that recognize this tenancy, this has the effect of barring debts incurred solely by one spouse from attaching to property owned as tenants by the entirety. The other advantage of this tenancy is that upon the death of one spouse, the entire estate automatically vests in the surviving spouse.
Joint Tenancy with Right of Survivorship
This is a common law tenancy for two or more individuals and/or companies. It still exists in most states. It was presumed at common law. This presumption has been abolished in most states and so this form of tenancy usually cannot be created unless there is specific language expressing the intent to create this tenancy between two or more owners.
Tenancy in Common
This is a common law tenancy for two or more individuals and/or companies. It does not, however, come with a right of survivorship and therefore the interest of any decease person must pass through probate in order to be conveyed. Unlike the two tenancies listed above, this form of tenancy typically allows unequal shares in the property to be assigned to the various co-owners.
