Real estate law is packed with arcane rules, many of which have existed since the Medieval era. These legal rules affect our daily lives on a regular basis, yet we may not even realize it. Co-ownership of a home or commercial space is a common property-sharing scheme, yet it is uncommon for co-owners to actually know (or even care) what category of co-ownership their property falls into.
In general, there are three types of legal co-ownership categories:
- Tenancy in Common (the default rule);
- Joint Tenancy (includes rights of survivorship); and
- Tenancy by the Entirety (for married couples)
This article examines how this notion of tenancies interacts with the sale of property. What happens, however, if you co-own property with someone else, and one of you wants to sell your share in the property? Under most circumstances the law will allow you to sell your ownership share in your property, even if there is a co-owner, but how does that work?
Basics of Co-owning Property – Possession vs. Title
Under general principles of property law, each co-owner of a house has a legal right to possess the whole of the property. By agreement, most co-owners set certain boundaries (such as assigning bedrooms or kitchen cabinet space), but in general, any co-tenant has a right to possess the whole property.
This possessory right is distinct from a tenant’s ownership right in the house. Legal title determines who owns the property and in what proportions. For example, if George owns a home with his two buddies, John and Thomas, they could each own equal one-third shares of the property. They could also, however, own the property in different proportions; for example, maybe George owns half and John and Thomas each own one-fourth.
You can sell your share in the house freely without forcing your co-owners/roommates to give up their rights to possess the property. Whoever moves in and takes your share will then have an equal right to possess the home alongside your co-owners.
The Effect of Title on Ownership and Sale
If possession vs. ownership was not confusing enough, here’s where the arcane and ancient rules really come into play. The form of title in the co-owned property will affect how the procedure works. Most states recognize three types of what are called “tenancies.” If you co-own a home or commercial property, you are a part owner of a tenancy.
Most homes that are co-owned are tenancies in common. Under the arcane rules of property, tenancies in common are the default; in other words, if you did not attempt to create a specific type of tenancy, you automatically created a tenancy in common. In that case, there is nothing unusual to know other than what has been described above.
Joint tenancies and tenancies by the entirety complicate matters. If the property is titled as a joint tenancy, that means that your share of the property also carries what are known as “rights of survivorship.” Survivorship rights essentially mean that if a joint tenant passes away, the other co-owners of the joint tenancy automatically gain ownership over the deceased tenant’s share, regardless of what his or her will says.
If a joint tenant sells his or her share of the property, that sale destroys any rights of survivorship that may exist, but only for that joint tenant. What this means for joint tenants is essentially this – if you co-own property as joint tenants because you wanted survivorship rights, you should be leery of any of the co-owners selling shares of that property and contact an attorney if you need more information about the potential consequences of the sale.
Finally, a co-owner’s share in a home held jointly as tenants by the entirety (a tenancy only available to married couples) cannot be sold without the consent of the co-owning spouse unless the spouses are divorced. Divorce automatically destroys a tenancy by the entirety, which means that the co-owners of the property may sell it at their leisure.
The last one
The topic of the sale of jointly-owned property is very complex and there is simply too much ground to cover for this article to explain everything. If you are considering the sale of your co-owned property and you have any remaining questions about co-ownership sales and the legal consequences of those sales in either New York or New Jersey, contact the Law Offices of Yuriy Moshes.
We offer free consultations for all new clients. Our law firm has three offices, two in New York City (Brooklyn and Manhattan) and one in West Orange, New Jersey. You can contact us through our website at https://mosheslaw.com/ or by calling (888) 445-0234.