HOW YOU CAN TAKE TITLE
Title to real property in Florida may be held by individuals, either in Sole Ownership or in Concurrent Ownership. Concurrent Ownership or “Co-Tenancies” of real property occurs when title is held by two or more persons. Generally, there are four variations as to how title may be held in Florida. Below is a brief summary referencing the more common examples of Sole Ownership and Co-Ownership.
I. SOLE OWNERSHIP
The simplist form of ownership:
- A man or woman who is not married.
- A Married Man/Woman, as His/Her Sole and Separate Property (must be non-Homestead property)
- No creditor protection
II. TENANCY IN COMMON
A title is the evidence of a person’s right of ownership and possession of the land. Sometimes, someone other than the record owner has a legal right to or an interest in the land. If such a right can be established, this adverse person can make claim to the land.
A. No Right of Survivorship: There is no right of survivorship between tenants. Thus, each tenant in common can make a testamentary transfer of his interest; if a tenant in common dies, his interest will pass under the intestacy statutes or by will to his heirs.
- Example: A and B take title to Greenacre as tenants in common. They have equal shares (1/2 each). A dies, that it will, leaving only one relative, a son, X. Title to Greenacre is now: 1/2 undivided interest in X, and 1/2 undivided interest in B.
B. Unequal Shares: Tenants in common may have unequal shares. There is no right of survivorship between tenants. Thus, each tenant in common can make a testamentary transfer of his interest; if a tenant in common dies, his interest will pass under the intestacy statutes or by will to his heirs.
- Example: A and B hold title to Greenacre as tenants in common, with A holding and undivided 1/4 interest and B a undivided 3/4 interest
C. Presumption Favoring: In Florida, so long as the Co-tenants are not husband-and-wife, there is a rebuttable presumption in favor of tenancy in common.
D. No Creditor Protection: If the property owned is non-homestead in character, than creditors of one co-tenant can levy on that co-tenant’s undivided interest to satisfy the debt owed to the creditor.
III. JOINT TENANCY WITH RIGHT OF SURVIVORSHIP
As Joint tenancy with right of survivorship two or more people own a single unified interest in the real property.
A. Survivorship: Each joint tenant has a right of survivorship. That is, if there are two joint tenants, and one died, the other becomes sole owner of the interest that the two of them had previously held jointly.
B. Possession: Each joint is entitled to occupy the entire premises, subject only to the same right of occupancy of the other tenant(s).
C. Equal Shares: Since the joint tenants have identical interest, they must have equal shares. Thus, one joint tenant cannot have a one fourth interest, say, with the other having three-forth interest.
D. Granting a Mortgage: Since Florida is a “title theory” state, if one joint tenant mortgages his or her interest, the grant is treated as a conveyance which destroys the joint tenancy. As a result, the lender will have a mortgage on an undivided 1/2 interest in the property: the other joint tenant will be unaffected.
IV. TENANCY BY THE ENTIRETY
This form of concurrent ownership can only exist between married persons. Like Joint tenancy with right of survivorship, both the husband and wife have identical interest.
A. No Severance: A key feature of the tenancy by the entirety is that it is not subject to severance. So long as both parties are alive, and remain husband-and-wife, neither one can break the tenancy. No convenience, will be good without Joiner of both spouses.
B. Survivorship: Most significantly, each spouse knows if he or she survives the other, the survivor will get a complete interest.
C. Protection Against Creditors: The entirety estate cannot be pierced by creditors of one spouse alone. For a creditor to Levy upon entireties property to satisfy debt, the creditor must be a creditor of both the husband and wife.
D. Divorce: If the parties get divorced, the tenancy by the entirety fiction ends. The parties are then treated as owning separate “undivided” interests (usually as tenants in common).
The preceding summaries are a few of the common ways to take title to real property in Florida and are provided for informational purposes only. There are significant tax and legal consequences on how you hold title. We strongly suggest contacting an attorney for specific advice on how you should actually vest your title.