Most people are pretty confident in their ability to answer the question, “Who owns my house?” However, due to a quirk of legalese, most people don’t actually know for sure. And even fewer people know how much it matters.
If you and you alone own your house, you can know who owns it. But if you own your house with someone else, whether it is your spouse, your partner (business or otherwise), or a relative, it can be confusing. To over simplify, there are two ways to jointly own a house: as Tenants in Common, or as Joint Tenants with Right of Survivorship.
Most married folks want to own their house as Joint Tenants with Right of Survivorship (hereinafter referred to as “Joint Tenants.”) (And how amazing is it that I, a lawyer, have written so many legal columns and not until now used the word “hereinafter?”) In plain English, this means that you both own the entire house. You don’t each own half, you both own the whole. If one of you were to die, the other would automatically (and still) own the whole thing. Neither of you can sell the house or any part of it without the consent of the other.
If you are Tenants in Common, you each own the house in equal shares. If there are two of you, you each own a 50 percent interest in the house. If one of you dies, the survivor still owns his 50 percent, and whoever gets the house under your will (because you DID do the right thing and you DO have one) gets the other 50 percent. Under this scenario you can sell your interest in the house with or without the consent of the other owner(s). This isn’t as weird or as undesirable as you might think. Let’s say your childless Aunt Ida passes away and leaves her house to you, your siblings, and your first cousins – eight of you in all. You would each own as tenants in common. You could then all sell your shares to one of you, or let Uncle Bernie buy half, or sell to anyone else who was willing to own a house along with your crazy cousin Patty. It allows you to trade your ownership without getting anyone’s permission. Likewise, in a business ownership scenario, it would allow you to leave your portion of the property to your family, as opposed to the guy you do business with.
There are even some family/married situations in which you might want this. Let’s say you are widowed after 40 years of marriage and have three wonderful children. At the age of 70 you remarry a man who is wonderful, but has one child who is in and out of jail and another who cannot stand you because she thinks you take her daddy’s affection away from her. You and your new husband buy a house together. You want to be able to leave your portion to your children if you die, not his ungrateful wretches. You would then want to be tenants in common.
Which situation you are in is written on your deed. If your deed says “joint tenants with right of survivorship,” that’s what you are. If it says anything else, you are tenants in common. If you look at your deed and find you are not the one you want (or can’t tell) it is an easily fixable situation.
There are lots of subtleties to this. Don’t assume anything about your deed and what is best for your situation.
This article was written by a lawyer, but should not be considered legal advice in any way, shape, or form. It is written for general (and generally vague) informational purposes only. In order to properly evaluate your case, a lawyer must examine all the facts and circumstances that are particular and personal to your situation. I have not done that here.