How to Sever a Tenancy in Common

How to Sever a Tenancy in Common

When two or more people hold title to real property, this is known as tenancy in common. Each person has concurrent ownership of the property, and tenancy in common is one of three types of concurrent ownership. The other two types of concurrent ownership are joint tenancy and tenants by the entirety.

Joint tenancy provides the right of survivorship, which means that when one owner dies, the property passes to the other owner automatically without the necessity of having to go through probate. To sever a joint tenancy, an owner has to petition a court.

Tenants by the entirety is available only to married couples. If they divorce, the ownership reverts to a tenancy in common. To sever a tenants by the entirety, both spouses must agree.

Tenancy in common simply means that two or more people own the same piece of property at the same time. The ownership shares do not have to be equal, but each owner has an equal right to possess or use the property. Ownership is also fluid in that one person can own the property first, and then transfer or sell ownership interests to others later.

Tenancy in common owners are free to sell or transfer ownership interests at will, unless a separate agreement has been made that all owners must approve a sale or transfer or have the first right of refusal to purchase an owner’s interest in the property.

Tenancy in common does not include a right of survivorship. The ownership interest can be transferred via a will or, if no will exists, the share will transfer according to Florida’s laws of intestacy.

Tenants in common may also petition a court to partition the property into different lots or sections. There are two types of partitions: (1) partition in kind, where the court divides land based on the ownership interest of each tenant in common; and (2) partition by sale, where the court orders the sale of the property and the profits are divided to each tenant in common according to their ownership interests.

Real estate property in Florida can also be titled in the name of a separate legal entity, including a partnership, limited liability company (LLC) or corporation. In addition, property can be titled in the name of a revocable trust or Florida land trust, and beneficiaries named for that trust.

To avoid making a mistake when taking or transferring title your property, contact one of the experienced Florida real estate attorneys at Jurado & Farshchian, P.L., at (305) 921-0440, or email us at info@jflawfirm.com.

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