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There are several different terms for co-owners of real property, each with their own legal significance. Two such designations that often result in confusion as to the rights and responsibilities of the co-owners are those holding real property as tenants in common and those holding real property as part of a joint tenancy. There are several key differences between joint tenancy and tenancy in common, but the main distinction can be drawn in the right of survivorship granted to parties of a joint tenancy. This means that when one joint tenant dies, his or her survivors may not succeed to take ownership in her interest. Rather, his or her interest is split between the remaining joint tenants.
Tenants in common do not have the right of survivorship. Upon the death of one of the tenants in common, his or her interest in the property may be devised to any of his or her heirs through a will or the probate of his or her estate. The respective interest of tenants in common in the property is transferable without restrictions, notwithstanding any restrictions agreed to by the parties in a separate agreement.
A joint tenancy’s creation has four elements: time, title, interest, and possession. In order to create a joint tenancy, all the parties must take identical interests, at the same time, by the same transaction, and with the same right to reside on the property. Thus, each joint tenant has the same exact stake in the piece of property. Tenants in common may own their property together with disproportionate respective interests and not have any adverse affects on the arrangement. Additionally, parties seeking to establish a joint tenancy must clearly state their intention to maintain a right of survivorship between the parties or a tenancy in common will be presumed.
Upon severance of a joint tenancy, the resulting arrangement is one of tenants in common. The most common way a joint tenancy is severed is through conveyance of one of the parties’ interests in the joint tenancy to another party. This results in the new owner taking his or her interest as a tenant in common. If there is only one other joint tenant, then the joint tenancy is completely dissolved and the two owners will be tenants in common. However, if there are more than two interested holders of interest in the joint tenancy, then the remaining original joint tenants will remain as such and only the new owner will hold his interest as a tenant in common.
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