Sole Owner. Under this approach, title is taken in the name of only one individual grantee and is freely transferable or subject to encumbrance by that grantee, subject to dower and/or homestead rights described below. Example: John Doe, a single man, grantor, to Jane Smith, a single woman, grantee.
Joint Ownership with Right of Survivorship. Title can be taken in multiple names under this approach. Each joint tenant owns an undivided interest in the entire property. The “survivorship” language means that if one joint tenant dies, that person’s interest automatically is transferred to the remaining joint tenants. Any joint tenant may freely transfer his or her fractional interest in the property during his or her lifetime, but any such transfer will terminate the survivorship aspects of the joint survivorship tenancy to the extent of the interest transferred. Equal ownership shares are presumed unless the deed states otherwise. For example, if there are two grantees, each grantee will own a one-half interest unless the deed specifies otherwise.
A joint tenancy is created and exists only if four essential characteristics exist: (1) unity of joint ownership and control; (2) the interests held must be the same; (3) the interests must originate in the same instrument; and (4) the interests must commence at the same time. If all or any of these characteristics do not exist, the owners will own the property as tenants in common. Example: John Doe, a single man, grantor, to Able Smith, Jane Baker and Charles Jones as joint tenants with right of survivorship.
Tenants by the Entirety. Title can be taken as tenants by the entireties only by a validly married husband and wife. This form of ownership does not exist in all states. The words “husband and wife” in the grantee’s name makes this choice. If a transfer of this type is attempted but the grantees are not validly married, or if they become divorced, the title reverts to tenants in common. As tenants by the entirety, neither tenant may transfer his or her interest to a third party or encumber the property without both parties joining in the deed or mortgage. Upon the death of one party, the property automatically becomes the sole property of the surviving spouse. This is a common form of ownership among married couples, except in community property states. In community property states, the husband and wife presumptively acquire the property as community property and hold it as tenants in common or as joint tenants with right of survivorship. Example: John Doe, a single man, grantor, to John Jones and Jane Jones, husband and wife.
Tenants in Common. Title held as tenants in common, like joint tenants, allows title of the entire property to be held in multiple names. Title is also freely transferable or subject to encumbrance (as to the transferring tenant’s own interest) by each tenant. However, there is no right of survivorship in the surviving tenants upon one tenant’s death. Also, note that equal percentage ownership is presumed unless the deed specifically states otherwise. For example, unless the deed states otherwise, if there are three grantees, each grantee will own a one-third interest. It is always best to state each co-owner’s percentage ownership interest in the deed to avoid any uncertainty or misunderstandings. Example: John Doe, a single man, grantor, to Jane Smith, Sam Wilson and Tom Baker, in equal shares as tenants in common. Or John Doe, a single man, grantor, to Jane Smith as to ½ interest, Sam Wilson as to ¼ interest and Tom Baker as to ¼ interest, as tenants in common.
Title Conveyed in Trust for the Benefit of the Purchasers. Under this approach, legal (record) title is transferred to a trustee (for example, the grantee would be “John Doe, as trustee under agreement dated June 1, 2005”). Care should be taken in using this approach since there are more complex concerns involved.
Special Marital Property Issues. This is one issue where you must find out if the state in which the property is located has special rules that will require a different statement of ownership or will automatically grant interests in ownership between spouses. California, Arizona and Wisconsin are examples of “marital property” or “community property” states, where statutes have an impact on the way in which title is held. The grantee’s interest must be accurately described with terms required by that state’s law.
