“In California, you can hold title (own) to property in several ways. There are three types of ownership: sole owner, trust owner, and partnership owner. Joint tenancies and tenancies in common are the most common forms of collective ownership of property between two or more people. Two or more individuals may wish to hold title to a property (take ownership) when they decide to buy one.”
Having property as joint tenants versus tenants in common – what are the main differences? Let’s know all about Joint Tenant with Right of Survivorship vs Tenants in Common.
All joint tenants hold an undivided interest in a property in a joint tenancy. All co-owners have equal ownership of the property. The following four unities must be present in a Joint Tenancy:
- Agreement of title, which means that both co-owners own the same property.
- Deal of interest, which means both co-owners take equal claims.
- Unity of possession.
- Unity of time, in which all co-owners vest their interests at the same time.
Tenancy in common results when missing one or more of the four units.
Joint Tenancy and the Right of Survivorship
Right of Survivorship, the main characteristic of Joint Tenants, provides that the deceased’s interest in the property goes to the surviving purchaser.
If one of the joint tenants dies and the other(s) survives, the surviving joint tenant(s) generally become the owner(s) of the property regardless of the Will of the deceased.
Couples often use Joint Tenancy, but non-spouses can use it to pass their property to another. Usually, a trustee a part of their estate planning strategy.
A Joint Tenancy will continue to exist if many co-owners remain. A sole owner will become the sole owner if only one survives. A Tenancy in Common, but passes to the deceased’s estate upon the death of a co-owner.
The Elements of Joint Tenancy
A joint tenancy must meet the following four requirements:
- Same time. Property interest must be transferred to joint tenants.
- Same source. Deeds or titles must convey joint ownership interests in property.
- Similar interest. Shares of property must be equally divided among joint tenants. Take the example of two friends who each contributed 50% of the buy price for a piece of real estate.
- The property is theirs in that case. A friend contributing 20% but a friend contributing 80% does not constitute joint tenants if their shares are unequal.
- Undivided interest. The joint tenants share ownership of the property and have equal rights to use it.
Tenancy in Common
The co-owners own their ownership interests in proportionate proportion. This may be greater for some co-owners than others.
After a person passes away, their percentage ownership will die by their Will. Or under the Succession Law Reform Act, 1990, if they did not have a Will. An important aspect of tenancy in common is possession.
The Elements of Tenancy in Common
In general, joint tenancy is like living in common, but there are some differences as well:
- Interest doesn’t need to occur. A joint tenant has to receive their interest in the property, but a tenant in common does not.
- Having interest from different sources isn’t necessary. Various sources can convey tenants’ interests in the property (deeds, titles, will).
- Having the same interest. Unlike a joint tenant, a tenant in common needs to own an equal share of the property. There may be a tenancy in common if one owner has a larger share of the owner than the others.
- They own their property. There is a similar need for tenants in common to have and use the entire property as in joint tenancy.
Joint tenants must have equal share rights and receive their property interests from the same source.
Meanwhile, tenants in common can receive their interest over various periods and from many sources, and they do not have to have equal shares of the property. The property is available to tenants in common.
In what ways do tenants in common and joint tenants differ?
In the case of real estate, tenants in common are often common-law spouses, newlyweds, or friends or family who own real estate together. The tenants in common own a divided interest in the property rather than joint ownership, and they can hold different percentages of it.
Married people own real estate as joint tenants with the right of survivorship, allowing each spouse to hold 100% of the property. Ownership interest in a property passes to the surviving joint tenant upon the death of the first tenant; the surviving joint tenant then owns the property outright.
Upon death, the share of real estate owned as a common tenant passes through the property owner’s estate and is dealt with as described in their Will. Depending on the circumstances, it may go to anyone other than the co-owner, such as children from a first marriage.
You may consider owning a property as joint tenants with the right of survivorship if you wish for the parcel to go to the co-owner when you die, which may be the case for you.
When a couple separates or divorces, they could convert their joint tenants with the right of survivorship into tenants in common.
A real estate lawyer can assist in changing the ownership of the real estate. The process will involve legal and municipal or provincial fees. Costs may reach several thousand dollars.
Transfer tax when you transfer real estate ownership
You may have to pay land transfer tax when you transfer real estate ownership, but this is usually only the case when you’re paying for the transfer with cash, other assets, or a loan. Co-owners who change ownership without exchanging consideration, from tenants in common to joint tenants, won’t be subject to land transfer tax.
Joint tenancy with the right of survivorship shouldn’t entail any income tax consequences if both of you own 50% of the lot. Income tax implications may arise if you owned a smaller percentage than 50% before you changed ownership.
Capital assets like real estate are typically transferred between spouses at cost unless the spouse chooses otherwise. So, any capital gains taxes will be deferred until the property sells.
In a property transfer, the spouse who transferred some of their ownership to the other could receive future income from either capital gains or rental income.
A couple owning 75% of a rental property and transferring 25% to their spouse might be required to report 75% of their rental income and eventual capital gains on their income taxes.
Depending on whether the property qualifies as your main house, which I suspect it does for you, there may not be any income tax implications.
Upon changing the ownership of the lot, you or your partner will inherit the property if you or your partner dies. You won’t inherit it. It does not fall under the terms of your Will. Upon the second of your two deaths, the property will become part of your estate, which will go to your beneficiaries.
It is important to note that all this commentary applies to legally married and common-law couples.
Other advantages and disadvantages to knowing about
It is also important to consider other implications. There may be sales tax due upon home completion; however, you may qualify for a rebate from the government.
Separating from your partner after buying the lot has family law implications if one of you contributed more than the other to the sale. Think about whether one of you will be able to contribute more to the home construction than the other. As a result, you may require extra sales tax or family law advice.
There are many other things to keep in mind when changing the ownership of a lot with a real-estate lawyer.
Does Either Avoid Probate?
In law, there are two definitions of probate. The probate process involves checking in a court of law whether the testament of a deceased person is valid and authentic. Additionally, it is the process of distributing a dead person’s estate.
It can cost and take a lot of time to probate an estate, depending on its size, value, and complexity. Is JTWROS or tenancy in common probate exempt?
Tenancy in Common
It is common for tenancies in common to be subject to probate. The ownership interest of a co-tenant remains part of their estate after death. A will or state succession law must be followed to distribute the estate.
The property in a tenancy in common could be transferred into a trust to stay out of probate. It is not the person supplying the property that owns the property in trust; rather, the trust owns it. So, it is not part of the decedent’s estate when they die.
Joint Tenancy with Right of Survivorship
However, in a JWTROS, the ROS ensures that a joint tenant’s interest remains unprofitable. A sole owner becomes the joint tenant when only one joint tenant remains. If a sole owner dies, 100% of their share must pass as part of their estate, so probate is inevitable. A trust can again be set up to avoid this problem.
It is thus possible but improbable that all joint tenants would die simultaneously, rendering it impossible to determine who the last joint tenant to survive was. In this scenario, a joint tenant’s share may flow into their respective estates and cannot be avoided.
Things to consider
Tenants in common are generally advised to have a co-ownership agreement that outlines their rights and responsibilities. An example of a tenancy in common could be: if a third party lives on the property other than the owner.
What proportion of property taxes, utilities, maintenance, insurance premiums, and extra carrying costs is due from each owner? In terms of repairs and maintenance, who will make the decisions?
Are owners able to sell their factional interests to third parties? To enter into an Agreement of Purchase and Sale, Tenants in Common should know the answers to these questions upfront.
Questions for an Attorney
You must seek good legal advice to set up your property ownership correctly. If you wish to make an informed decision about your situation, you may need the guidance of a qualified attorney.
Prospective clients can typically take advantage of free initial consultations provided by many attorneys. In these meetings, both attorney and client can learn about the facts of the case, allowing the attorney to determine if they are suitable to handle the case.
An attorney knowledgeable about your case will help you determine if they are the right fit for you. When you first meet, ask yourself these questions:
- How much does your service cost, and what are your billing options?
- What are the advantages of joint tenancy over the tenancy in common?
- Is joint tenancy tax-efficient?
- When creating an ownership agreement, what factors should I take into account?
- What is the best way to resolve disputes between co-owners?
- How can you help me with my legal needs?
Make It Official
It’s crucial to understand how you want to title your property before you purchase it with your spouse, business partner, parents, or friends. If you decide to title the property jointly or as joint tenants with survivorship, you are not required to enter into a separate agreement. You can specify your desired terminology if you receive a seller’s deed.
But, buying property as tenants in common requires a written agreement since agreements about real estate transactions must be in writing. Our Tenants in Common Agreement can be used for this purpose.
You can download and print it if you need to customize it for your specific situation. You can use our form even if you have not made a final decision about ownership to understand better what a TIC agreement entails. Understanding the pros and cons of each method will allow you to make an informed decision.
Plan your estate: consider joint tenancy.
Joint Tenant with Right of Survivorship vs Tenants in Common. When planning your estate, it’s a good idea to consider joint tenancy with the individual who will inherit the estate. The cost and time of probate court can be prohibitive, and joint tenancy helps you avoid it.
Our firm is willing to assist you in setting up your property in a way that provides your heirs with a secure inheritance. We are available to speak with you if you wish.