Florida Joint Tenants v. Tenants in Common
In Florida, two or more people can co-own real estate together and there are generally two ways of owning that property – as Joint Tenants, or as Tenants in Common. If a deed is silent as to the method of ownership then the default status of ownership is as Tenants in Common.
Tenants in Common
Land in Florida can be owned by two or more individuals so long as the persons can legally own real estate, and there is no limit to the number of people who can own the real property. Under Florida law, Tenants in Common is the default form of co-ownership in land. A Tenancy in Common means that each co-tenant owns a separate interest in the land, normally a fractional amount of the property (i.e. 50/50, or 70/30).
In general, the fractional amount of ownership generally depends on how much the co-tenant contributed to the purchase of the property. For example, if two friends buy an apartment in Brickell together, and each contributed 50% of the purchase price, they would each by 50/50 owners of the property.
There is no right of survivorship in a Tenancy in Common. This means that when a co-owner dies, his or her interest transfers to their heirs (by intestacy if there is no will) or transfers according to the terms of that person’s will.
In Florida, when the deed language says “right of survivorship” and that is added to Joint Tenant language, that creates a Joint Tenancy with Right of Survivorship. This form of ownership means that when a co-tenant dies, his or her entire interest in the property automatically transfers to the other co-tenant. This is a favored characteristic of the Joint Tenancy.
For a Joint Tenancy to be valid, it is said to require “four unities.”
(1) The Unity of Time – meaning the interests were created at the same time;
(2) The Unity of Title – meaning the interest were created in the same document;
(3) The Unity of Interest – meaning that each joint tenant must have an equal interest including equal duration and extent of ownership; and
(4) The Unity of Possession – meaning that each joint tenant has equal right to occupy the entire property.
Termination of Joint Tenancy
There are several ways to terminate a Joint Tenancy, whereby creating a Tenancy in Common.
(1) By Operation of Law
Generally speaking, when a co-owner in a Joint Tenancy dies, his or her interest automatically passes to the remaining Tenant and therefore they become the sole owner. Where there are several Joint Tenants, the interest will be divided equally to the remaining Joint Tenants, who continue with Right of Survivorship until one last Tenant remains, unless the Joint Tenancy has been terminated in some other fashion.
In this case, Mattie Moring (joint tenant #1) got a loan on a property wherein she held her co-ownership interest with Richard Roundtree (joint tenant #2 – Mr. Roundtree’s wife shared in his interest as his spouse). The case got complicated when the bank tried to foreclose on overdue mortgage note against Ms. Moring’s interest, however she died several months after the foreclosure lawsuit being filed.
Mr. Roundtree had argued that his interest in the property was now free and clear by operation of law due to Ms. Moring passing away, the bank disagreed and wanted Mr. Roundtree to cover the unpaid mortgage.
The Fourth District Court of Appeals for Florida explained that the interest that Ms. Moring was a defeasible interest (an interest or right that is capable of being terminated, or which will terminate upon an occurrence of a condition subsequent) being that it was an interest in a Joint Tenancy with Right of Survivorship, and her interest terminated upon her death. Therefore, the mortgage on her interest imposed a lien on her defeasible interest which resulted in the lien terminated when Ms. Moring’s interest terminated at death.
The Moring case is an example where the bank was unable to terminate the interest of the remaining Joint Tenant. The result would have been different if Ms. Moring was alive for the entire foreclosure proceeding, because in that scenario the bank would be able to foreclose, thereby creating a Tenancy in Common with the remaining interest holders in the property.
(2) Sell the Interest in Life to a Stranger
Another way to terminate a Joint Tenancy is to sell your interest in the property. Anyone who owns residential real estate in Florida may sell their interest to anyone they choose in life without consent of the other Joint Tenants. Harelik v. Teshoney, 337 So. 2d 828 (Fla. 1st DCA 1976); See also D.A.D., INC. v. Moring, 218 So. 2d 451 (Fla. 4th DCA 1969).
In this case, a Mother and Son were Joint Tenants in property. The Mother sold her interest to a third person (stranger), however maintained a Life Estate in the property (a Life Estate means that the holder’s interest will terminate at death and will either revert to the original owner, or to another person known as the remainderman).
When the Mother died, the Son claimed full ownership of the property, however the third person (stranger) argued they had an interest in the property.
The First District Court of Appeals for Florida held that the unity of title had terminated when Mother sold her interest to the stranger, and therefore the Joint Tenancy had terminated. This resulted in Son’s interest being a Tenancy in Common with the stranger.
This case shows it is well settled law in Florida that a Joint Tenant may sell his or her interest in property in life, thereby terminating a Joint Tenancy – so long as the person who sold the interest could not claim they still retain some right of survivorship in the other holder’s interest.
(3) Transfer the Interest to Another
A Joint Tenancy can also be terminated by transferring one’s interest in ownership to another person. Such a transfer can be done with the consent of the other tenants, and will result in a Tenancy in Common as well.
In Countrywide, a Mother and Son held property as Joint Tenants. A quitclaim deed was filed deeding the property to the Son, solely, from the Mother and Son. This deed was held to be fraudulently signed on behalf of Mother, however the Son’s signature was found to be valid since he was the fraudster.
Son got a mortgage with Essex Mortgage Company and then refinanced with Bayside Federal Savings and Loan who assigned the mortgage to Countrywide. The Son died, and Countrywide didn’t get the mortgage payments and subsequently foreclosed.
In the foreclosure action, it was proven that the quitclaim deed was a forgery with respect to Mother’s signature, however Son had indeed signed the document. Therefore, the Joint Tenancy was terminated when Son signed the deed, and Mother’s interest became a Tenancy in Common with Countrywide, the lender, having the right to foreclose on the Son’s interest in the Tenancy in Common resulting from the deed to himself.
(4) Seek Partition
A partition of the interest may be sought. A partition is where the court orders property to be sold because one tenant has sued another tenant to end the co-ownership of the property, This is typical where property is inherited by two co-tenants who do not wish to co-own the property, or in the case of divorce, or where one tenant has blocked a deal which is fair.
If you are reading this post because you having issues relating to any of the above, contact our office at 305.224.8900 for a free consultation and let one of our attorneys review the matter at hand in order to protect your property rights.
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