Tenants in Common or Joint Tenants?

When it comes to owning real estate in New York, there are three options when a purchase or transfer involves more than one individual taking title: (1) joint tenants with right of survivorship, (2) tenants in common, and (3) tenants by the entirety, aka, property owned by husband and wife. Of course, legal entities such as corporations and LLCs can own real estate in New York, as well as trusts but, for the purpose of this article, the focus will address ownership by individuals.

When two or more individuals own real property as joint tenants with rights of survivorship, each individual owns an undivided interest in the whole property.  If one of the joint tenants dies, the deceased person’s interest automatically goes to the other joint tenant, hence the phrase “right of survivorship.”

When two or more individuals own real property as tenants in common, each owner owns an undivided interest in the whole property, which means they can sell or otherwise transfer or encumber their divided interest in the property. In New York, whenever more than one person buys or inherits property together, it is automatically held as tenants in common, unless they are husband and wife. If a tenant in common dies, the deceased person’s interest passes to their heirs or to the person specified in the terms of the deceased person’s will. If you no longer want to be a tenant in common, you can file an action for “partition,” in which the court may, in certain circumstances, divide up the interests in the property. 

Married persons can own real property as tenants by the entirety. When you look at a deed and the grantors or grantees are identified as, “John Doe and Jane Doe, as husband and wife,” that “husband and wife” language identifies that the property is owned as tenants by the entirety. This type of ownership has the same rights as joint tenants with a right of survivorship, but there is no right to partition or transfer the property without the consent of both parties.

If you have more questions or if you’d like to discuss a specific real estate issue, please give us a ring or send us an email.