LAW CLASS NOTES.docx - Joint Tenancy In most states a joint...

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Joint Tenancy In most states, a joint tenancy exists when two or more people own property and on the death of one, the remaining owner(s) own the entire property free of any interest of the deceased. This means that a joint owner does not have the power to determine who owns the property at death. The remaining joint owner or owners automatically own the entire property. This automatic ownership of the entire property by the surviving owners is called the right of survivorship . In a minority of states the right of survivorship must be specified even in a joint tenancy. As in the case of a tenancy in common, each joint owner owns an undivided interest in the property. No joint owner owns a specific portion of the property. The law does not favor the creation of a joint tenancy, so there must be a clear intention to create one. The language normally used conveys the property “to X and Y as joint tenants with right of survivorship.” A joint tenancy can be destroyed by one joint tenant selling or giving that tenant’s interest to another person. The new owner becomes a tenant in common of the interest conveyed. If there are three or more joint tenants and one sells his or her interest, the new
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owner is a tenant in common and the remaining, original joint tenants remain joint tenants as between themselves. A joint tenancy also can be destroyed by one joint tenant suing for a division of the property, called a suit for partition . Any joint tenant may sue for partition. Because a joint tenant’s interest in the property disappears at the joint tenant’s death, a joint tenant cannot dispose of such an interest by will. If a joint tenant purports to dispose of an interest in jointly held property by will, the will has no effect with regard to such property. Tenancy by the Entirety Similar to a joint tenancy, a tenancy by the entirety can exist only between a husband and wife. At the death of one, the other becomes the sole owner of the property. Almost half of the states recognize this form of ownership. This type of tenancy is popular with married couples because most want the survivor to
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have title to the property and to get it without any court proceedings. Many couples also like this type of ownership because the creditors of just the husband or just the wife cannot claim the property. To have a claim against the property, a creditor must be a creditor of both spouses. A joint tenancy differs in other ways from a tenancy by the entirety. In the case of property held as a tenancy by the entirety, neither the husband nor the wife alone may sell or otherwise dispose of it. Both the husband and the wife must join in any conveyance of the property. A divorce changes the ownership of property of a husband and wife from tenants by the entirety to tenants in common.
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  • Fall '19
  • Deed, Real property law

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