A brief overview of tenancy

Tenancy is possession or occupancy of lands, buildings or other property by title, under a lease or on payment of rent. The most common type is Common Law Tenancies, which is when groups of persons may hold property as a partnership or in the form of a corporation.

Typically, two or more individuals hold title in one of the common law forms: tenants by the entirety, joint tenants or tenants in common.

Tenancy by the Entirety

A Tenancy by the Entirety is described as an estate that exists only between legally married individuals with equal right of possession and enjoyment during their joint lives and with the right of survivorship – i.e., when one dies, the property goes to the surviving tenant. This form of tenancy is available to legally married individuals.

Joint Tenancy with the Right of Survivorship

For unmarried individuals, Joint-Tenancy is the most common form of ownership and typically embodies four essential “unities”: time, title, interest and possession. Joint-Tenants must acquire their interests at the same time and from the same source (time and title). They must have the same interests and identical rights to the property (interest and possession). The consequence of the unities is that each joint tenant is said to own the entire property, not an undivided share, subject only to the rights of the other joint tenants who also own the entire property. Effectively, when a joint tenant dies, his or her interest is automatically extinguished.

As a result of this, no interest exists that may be passed on after death by will. Likewise, no dower or curtesy can attach. Further, all un-foreclosed liens of one of the joint tenants placed on the land are extinguished. The same result occurs to any easements or leases which were granted by one of the joint tenants without the conveyance by the other joint tenants. Because no interest passes after death, there is no need for probate; the surviving tenant(s) retain the property.

Tenants in Common

Tenancy in Common is an ownership of real estate by two or more persons, each of whom has a separate and divided interest in the property, without the right of survivorship. Tenancy in Common allows the owners to designate separate percentages of ownership interests. Tenants in Common can sell their interests without the consent of the other co-tenants and upon death, the interest of a Tenant in Common passes to his or her heirs, either by will or in accordance with applicable law.

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