Article by: Ross Hardeman
For generations, many people have made the decision to jointly own real estate with another person. In many cases, people purchase a home with their spouse. Sometimes friends join together to purchase investment properties. Other people have inherited property together with family members. North Carolina law provides for different types of concurrent, or joint, ownership of real property. If you co-own real property with someone it is important to know which type of joint ownership applies to you and your co-owners and the consequences of your type of ownership upon the death of a co-owner. The following examples illustrate some common issues that arise in the context of joint ownership of real estate and the importance of reviewing your deed to ensure it vests ownership in your preferred manner.
Marriage and Ownership
Example 1: Jim and Pam were an engaged couple who excitedly bought a house in advance of their wedding. They were not married at the time they closed on the property and their deed did not reference any rights of survivorship. Unfortunately, shortly after their wedding, Jim died in an untimely accident without a will. Pam had always heard that if one spouse passes away, the surviving spouse automatically inherits the deceased spouse’s interest in jointly-owned real estate. Pam was soon shocked to learn that Jim’s parents claimed to co-own the house with Pam.
Because Jim and Pam bought the house before they were married, and because there was no survivorship provision in the deed, they owned the property as “tenants in common.” Owning property as tenants in common means that if a co-owner passes away, the deceased co-owner’s interest in the property passes according to his or her estate plan or the laws of intestacy. In this example, since Jim did not have a will he died intestate, and his interest passed according to state law. To avoid this issue, Jim and Pam could have reconveyed the property to themselves as husband and wife after they were married. At that point, they would have owned the property as “tenants by the entirety,” a form of ownership reserved for married couples which allows the surviving spouse to automatically own the entirety of a property upon the death of one spouse. Or, Jim and Pam could have had their deed worded to take title as “joint tenants with a right of survivorship” before marriage, which also would have allowed Pam to automatically receive title to the entirety of the property upon Jim’s passing.
Joint Ownership
Example 2: Charlie and Alan were brothers who, early in life when they were both unmarried, bought a cabin in the North Carolina mountains together. At closing, the attorney mentioned a survivorship mechanism in their deed that would allow the surviving brother to own the home if something happened to one of them. The brothers hastily agreed, excited to get to their new cabin and go fishing. However, their family situations evolved over the years. Charlie finally put down his fishing pole long enough to get married, and eventually Alan followed suit. Each brother had children who, in turn, had many years of fun with their families at the family cabin. Unfortunately, Charlie and Alan later had a falling out. Towards the end of his life, Charlie told his children, “It gives me comfort that you will get my half of the cabin when I’m gone.” When Charlie died, his children were shocked when Alan claimed to own one hundred percent of the cabin due to the wording of their deed.
In this illustration, Charlie and Alan took title to the cabin as “joint tenants with a right of survivorship.” As joint tenants with a right of survivorship, the survivor of the two co-owners takes title to the entire interest in the property rather than the deceased co-owner’s interest passing to his or her heirs through his or her estate. This form of ownership made sense when Charlie and Alan were young and single, but it is clear that Charlie’s preference later in life was to leave his one-half interest to his children. As their families evolved, Charlie and Alan could have consulted with an attorney as to how to sever the joint tenancy in a new deed in order to own the property as “tenants in common,” which would have allowed each brother to leave their one-half interest in the cabin to their families instead.
These illustrations demonstrate why, if you jointly own property, it may be worthwhile to have an experienced real estate attorney review your deed to ensure it is drafted consistent with your planning goals.
The information in this Article is provided solely for informative purposes and is not intended to be legal advice nor relied on for any legal purposes.
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