Forms of Real Estate Ownership

Ownership of real estate is determined by how title is held.

Different kinds of ownership interests:

• Tenancy in Common
• Joint Tenants with the Right of Survivorship
• Tenants by the Entirety (only available to married couples)
• Life Estate

Tenants in Common

Tenants in common is when two or more people own real estate together. Tenancy in common can have equal ownership or they can each own in different percentages. Tenants in common can obtain the property together, at the same time, or they can aquire their interest at different times, even from different owners. Tenancy in common is presumed if the deed is silent on the type of tenancy created, and tenants in common who acquire the property at the same time are presumed to have an equal interest in the property unless the deed expressly states otherwise. If title is held by tenants in common, when one of the owners dies their interest in the property passes through their estate, either to the persons named in the decedent’s Will, or alternatively, to the decedent’s distributees (i.e., through intestate succession (see: EPTL § 4-1.1)) in the event that the decedent dies without a will.

Joint Tenancy with the Right of Survivorship

JTWROS (Joint Tenants with the Right of Survivorship) are also co-owners, but they must take title to the property simultaneously with the same deed. Joint tenants also all own equal shares of the property. When a joint tenant dies, title passes by operation of law to surviving owner(s). Similar to tenancy in common, joint tenants can sell or transfer their interest in the property separately from the other joint tenants. In these circumstance ownership reverts to tenancy in common.

Tenancy by the Entirety

This form of ownership may only be held by spouses, and applies to all deeds taken by spouses in which the kind of tenancy is silent. For example, the deed would read “John Smith and Mary Smith, husband and wife.” In a tenancy by the entirety, each spouse owns 100% of the property, and upon the death of one spouse, the other spouse owns the property free and clear of any encumbrances that may have been caused by the other spouse. In New York, a tenancy by the entirety cannot be partitioned by third parties. In addition, neither spouse can transfer their interest in the property without the consent and cooperation of the other spouse. Finally, a tenancy by the entirety is terminated by divorce and reverts to tenancy in common.

On or after January 1, 1996 of the shares of stock of a cooperative apartment corporation allocated to an apartment or unit together with the appurtenant proprietary lease to a husband and wife creates in them a tenancy by the entirety, unless expressly declared to be a joint tenancy or a tenancy in the common. (Note. A coop is not real estate. A coop is personal property.)

Life Estates

A life estate creates an ownership interest in a property that lasts for the life of the life tenant. The life tenant is allowed to possess and use the property, can collect rents and profits, during their lifetime. The life tenant is responsible for the costs of maintaining the property. The remainder owner(s) take legal ownership upon the death of the life tenant. The remainder owner(s) also do not have the right to use the property or collect income generated by the property, and are not responsible for taxes, insurance or maintenance, while the life tenant is alive.