How Do I Take Title to Real Estate With My Spouse?
If you are thinking about purchasing real estate in the St. Petersburg area—for example, you and your spouse want to buy your first home—it is important to understand the different forms that land ownership may take. This is not a minor technical detail; how real property is titled affects your legal rights as owners.
Tenants in Common
Two or more people can purchase and own real estate as “tenants in common.” With this form of ownership, each co-owner holds their interest separate and apart from the other co-owners. In a sense, tenants in common are like shareholders in a corporation.
Tenants in common do not have to maintain equal shares of the property. One co-owner could have 60 percent while the other holds the remaining 40 percent. Each co-owner is also free to sell or dispose of their interest in the property without the consent of the other co-owners.
Joint Tenants and Tenants by the Entireties
A joint tenancy, in contrast, means the co-owners hold a 100 percent in the property as a single group. A deed creating joint tenancy usually refers to “joint tenants with rights of survivorship.” This means that when one co-owner dies, the surviving co-owner automatically assumes full ownership of the property. When a married couple establishes a joint tenancy, it is known as a “tenancy by the entireties.”
To clarify this point, consider two people who buy a house together. If the deed titles the property to them as “tenants in common,” then the first person who dies may dispose of their 50 percent share of the property through their will or other estate planning document. But if the couple owns the property as “joint tenants with right of survivorship” or “tenants by the entireties,” the first person to die has no say in what happens to the property: the survivor automatically becomes 100 percent owner.
Under Florida law, parties who wish to establish a joint tenancy or a tenancy by the entireties must explicitly do so in the deed granting title to the property. By default, the law assumes parties intend to co-own property as tenants in common. And in the case of a tenancy by the entireties, if the married couple later divorces, the property automatically reverts to a tenancy in common.
Why Title Matters
Another key feature of a joint tenancy is that one co-owner cannot legally mortgage the property without the consent of the other. In a recent Florida case, for instance, a state appeals court held that a foreclosure sale of a home was invalid because the wife forged her husband’s signature on the original mortgage documents. Since the property was held as tenants by the entireties, the lender could not legally sell the property. In contrast, had the couple owned the property as tenants in common, the lender could have sold the wife’s separate 50 percent interest.
This is why it is important to carefully consider how you want to acquire property with another person, even a spouse. An experienced St. Petersburg real estate attorney can advise you on this and many other legal issues related to buying or selling property. Contact the offices of Carnal & Mansfield, P.A., if you need help today.