Walternative Views - Real Estate Lecture: Concurrent Ownership

Concurrent ownership is ownership by more than a single person. Each state's law will govern how concurrent ownership will be available.

Types of concurrent ownership:

Joint tenancy with right of survivorship:

Can only be created by deed or will.
Each owner (tenant) owns an equal, undivided interest.
Each owner's interest is equal to the other owner's interest in the "four unities:" Interest, Title, Time, and Possession.
The deed contains "boilerplate" language, that is, ". . . as joint tenants with rights of survivorship."
To sell the property, all owners must unite in signing a deed.
Rights of survivorship apply. The death of an owner passes the owner's share to the remaining living owners. Winner takes all.
Severance of the tenancy breaks the survivorship! Not all, but most, states permit severance by a simple act of a transfer by any tenant without the others joining in. A simple deed, or even a deed of trust, to a new owner will break the survivorship. The part conveyed is free of survivorship qualities, that is, will not receive a larger part of the ownership if one of the other owners dies first. Nor will one of the original owners be able to obtain the new owner's share if the new owner dies first.
Oregon does not have a joint tenancy with right of survivorship, any more, but there may be some old deeds out there that contain these provisions.

Tenancy in common:

Created by deed, lease, will, or involuntarily by intestacy.
Need not be created with unities.
No right of survivorship. Each interest is transferrable.
Each interest passes by estate rules. No unities means that unequal shares may be owned.
Presumption in favor of tenancy in common

Tenancy by the entirety:

Concurrent ownership with survivorship by husband and wife, in the states that recognize the tenancy , e.g OREGON.
Created by deed to a husband and a wife.
The husband and wife, married, are a unit, (cf: one of the unities for JT)
Survivorship rights attach.
Both must join on any document that transfers ownership or any rights to the land, as, leases, rental agreements, mortgages, deeds of trust.
Cannot be severed by sale by one party.
Divorce automatically converts to a tenancy in common.
Entirely creatures of statute. While based on common law of marital unity, not a common law measure of title.

Community property:

Community property did not exist in common law, where it exists, it is solely a creature of statute.
Oregon is not a community property state, but California, Idaho, and Washington are.
The husband and wife, married, are a partnership.
By statute, all property acquired during the marriage by either spouse - except for property acquired by gift, inheritance, or as a beneficiary of a will - belongs to both spouses equally as community property.
Non community property, acquired before marriage, etc., is separate property.
Property acquired during marriage purchased with separate property is not community property.
If the source of funds to acquire property is mixed, then the character of property is proportional to the source of funds.
Community property is jointly owned, and cannot be conveyed except by deed of both spouses.
There is a presumption that favors community property.
Frequently, parties use a prenuptial agreement to "prove" their separate property.

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Lecture Notes: Concurrent Ownership

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Concurrent ownership is ownership by more than a single person. Each state's law will govern how concurrent ownership will be available.

Types of concurrent ownership:

Joint tenancy with right of survivorship:

Can only be created by deed or will.

Each owner (tenant) owns an equal, undivided interest.

Each owner's interest is equal to the other owner's interest in the "four unities:" Interest, Title, Time, and Possession.

The deed contains "boilerplate" language, that is, ". . . as joint tenants with rights of survivorship."

To sell the property, all owners must unite in signing a deed.

Rights of survivorship apply. The death of an owner passes the owner's share to the remaining living owners. Winner takes all.

Oregon does not have a joint tenancy with right of survivorship, any more, but there may be some old deeds out there that contain these provisions.

Tenancy in common:

Created by deed, lease, will, or involuntarily by intestacy.

Need not be created with unities.

No right of survivorship. Each interest is transferrable.

Each interest passes by estate rules. No unities means that unequal shares may be owned.

Presumption in favor of tenancy in common

Tenancy by the entirety:

Concurrent ownership with survivorship by husband and wife, in the states that recognize the tenancy , e.g OREGON.

Created by deed to a husband and a wife.

The husband and wife, married, are a unit, (cf: one of the unities for JT)

Survivorship rights attach.

Both must join on any document that transfers ownership or any rights to the land, as, leases, rental agreements, mortgages, deeds of trust.

Cannot be severed by sale by one party.

Divorce automatically converts to a tenancy in common.

Entirely creatures of statute. While based on common law of marital unity, not a common law measure of title.

Community property:

Community property did not exist in common law, where it exists, it is solely a creature of statute.

Oregon is not a community property state, but California, Idaho, and Washington are.

The husband and wife, married, are a partnership.

By statute, all property acquired during the marriage by either spouse - except for property acquired by gift, inheritance, or as a beneficiary of a will - belongs to both spouses equally as community property.

Non community property, acquired before marriage, etc., is separate property.

Property acquired during marriage purchased with separate property is not community property.

If the source of funds to acquire property is mixed, then the character of property is proportional to the source of funds.

Community property is jointly owned, and cannot be conveyed except by deed of both spouses.

There is a presumption that favors community property.

Frequently, parties use a prenuptial agreement to "prove" their separate property.

Words and Phrases to Know: concurrent ownership, joint tenancy with right of survivorship, severance of tenancy, tenancy in common, right of survivorship, tenancy by entireties, community property.