The main ways to hold title to real estate in Florida are (1) Tenants in Common (2) Tenants by the Entireties and Joint Tenants with the Right of Survivorship. Joint Tenants with the Right of Survivorship is a manner of holding real estate where if one joint owners passes away the other acquires their interest in the subject Property. Fla. Stat. 689.15 provides that survivorship is not presumed and thus to hold title in this manner requires specific language on the deed. For a joint tenancy to be operative the acquiring parties must share four “unities” which are, possession, title, time and interest. This means the parties must have acquired the interest simultaneously and their ownership in the Property must be identical. Unlike other forms of Property ownership the Joint Tenancy can be encumbered by creditors and is subject to individual judgment liens.
Joint Tenancy may be severed by an act of one Joint Tenant if the joint tenant conveys their interest in the real property to themselves or a third party or by mutual agreement.
The advantage of holding title as a Joint Tenant with the right of survivorship is that the Property interests are conveyed completely to the surviving joint holder of the property upon the death of a joint tenant. So a major advantage of holding title in this manner is avoiding probate. Other mechanisms exist to provide an automatic transfer of real estate including Trusts, Life Estate Deeds and for married couples a Tenancy by the Entireties. For non-married couples a Joint Tenancy is a method to automatically transfer property interests and avoid probate. Another key characteristic with Joint Tenancy with the Right of Survivorship in Florida is shared responsibility for the upkeep and obligations of the Property. Each owner is responsible for the asset and liabilities can attach.
If you hold title and are considering adding a loved one to the Property as a Joint Tenant with a Right of Survivorship understand that once they are added to the title they now have a vested interest in the Property. So if the relationship sours or for example the Joint Tenant goes through a divorce or incurs a debt it can attach to your Property. Because of these reasons if the goal is to transfer title to the Property upon death then an Enhanced Life Estate Deed or a revocable living is superior because the grantor will retain full control during lifetime. If instead two people wish to have the responsibility of co-ownership during lifetime to hold/own or manage a property then in some circumstances a Joint Tenancy with the Right of Survivorship makes sense.
Pros
- Avoids Probate
- Joint responsibility
- Allows non-married co-owners to pass ownership without a Last Will and Testament
Cons
- Debtors of co-owner can attach to property
- Severable by either joint owner
- Loss of control of Property
If you are considering acquiring Property or re-titling real estate in Florida give our office a call for a no-obligation consultation to review your options.
Relevant Florida case law discussing Joint Tenancy:
Christensen v. Bowen, 140 So.3d 498 (Fla. 2014)
In Connell v. Connell, 93 So.3d 1140 (Fla. 2d DCA 2012)
