A QUICK GUIDE TO TITLING PROPERTY IN FLORIDA

(Co-Tenancies)

            When purchasing real estate in Florida with another person, one of the many important decisions you will need to make is how to take title to the property. The way you hold title with another person will determine your ownership rights in the property during your life as well as how the property will be transferred in the event of your death. In this article we will address three primary ways you can hold title in Florida with another person. A Co-Tenancy is created when real property is owned by multiple persons or entities. There are three basic classifications of co-tenancy estates:

1. Tenancy in Common – Tenancy in common is the default co-tenancy in Florida, meaning that if the deed does not otherwise state how two individuals have taken title, the law will automatically deem the tenancy a tenancy in common.

Key Features:

• No Right of Survivorship. The interest of the co-owner does not terminate upon his or her death. Each owner has a separate estate that will descend to their heirs or may be devised by will.
• Possession. Each co-owner has the right to possession of the entire property. If one owner is in possession of the property, they are presumed to hold it for the benefit of all co-owners.
• Obligations. Generally speaking, each co-owner has an obligation to pay their pro-rata share of the costs of the real property, including mortgage payments, property taxes, etc.
• Alienability/Transferability. The estate of each owner can be freely severed or alienated.
• Joint Tenancy Agreement Strongly Encouraged.

2. Joint Tenancy with Right of Survivorship – Co-ownership with a right of survivorship, can only be created with express words of survivorship on the face of the deed. Failure to expressly take title as joint tenants with rights of survivorship will result in a tenancy in common.

Key Features:

• Right of Survivorship. At the death of one owner, the deceased owner’s interest immediately and automatically terminates and the surviving owner(s) remain the owner(s) of the whole property free and clear of the claims of the heirs or creditors of the deceased owner.
• Alienability/Transferability. A joint owner’s interest may be severed voluntarily or involuntarily and in either event the tenancy will be converted to a tenancy in common.
  • Voluntary: A joint owner may voluntarily convey their interest without authorization by the other co-owners.
  • Involuntary: A joint tenancy may be severed involuntarily by an execution sale of the judgment debtor/owner’s interest.

3. Tenancy by the Entirety – A unique form of property ownership available only to legally married couples. The marital unit is treated as a single ownership legal entity, which offers significant legal protections and benefits.

Key Features:

• Unities of Title. All of the following must exist at the time the parties take title to the property:
  • Time: Both owners must have acquired their tenancy at the same time.
  • Title: Both owners must have acquired title in the same conveyance instrument.
  • Interest: Both owners must have equal undivided interest in the property.
  • Possession: Both owners must have equal rights to possession and control of the property.
  • Marital Status: Owners must be legally married.
• Survivorship. Upon the death of one of the spouses, the survivor is the owner of the entire property by operation of law. The surviving spouse may convey the property upon recordation of the death certificate of the deceased spouse.
• Severability. Neither spouse can individually convey or encumber the estate because neither spouse owns an interest that is divisible from the other spouse.
• Effect of Divorce. In event of divorce, upon the recordation of a final judgement dissolving the marriage, the tenancy is automatically converted to a tenancy in common.
• Attachment of Judgement Liens. A judgement against one spouse is not enforceable against the property owned by entireties.
• Federal Tax Liens. A federal tax lien against one spouse will attach to the property as a whole.

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