When two or more people share ownership of land or other real estate, each person owns an interest in the property. For this reason, Illinois law requires that co-owners of property make a decision about how the title of the property is held. In Illinois, a title can be held in three ways: tenancy by the entirety, tenants in common, or joint tenants with the right of survivorship. The type of title assigned to a property will define the rights and authorities of outside creditors, and it will also affect how the property is transferred upon the death of an owner.
Tenancy by the Entirety
Tenancy by the entirety in Illinois is a means of holding title that is exclusively available to married couples. One of the benefits of this type of title is that it affords extra protection to marital property against some creditors. For example, the property under this title may not be divided, sold, or otherwise encumbered for any non-joint debts of a husband and wife without the consent of both spouses.
While there are benefits to holding title as tenants by the entirety, the guidance of an experienced attorney who concentrates in real estate and contract law is recommended to establish this form of title.
**Important: Illinois law does NOT offer an automatic tenancy by the entirety provision for married couples that share a home as joint tenants. Instead, the courts require that specific terminology be employed in the deed to create this form of tenancy.
The two more common forms of holding title are as tenants in common or as joint tenants. Here are a few important differences to remember between the two.
Tenants in Common
A title held as tenants in common is the most basic form of title. In Illinois, this form of title is considered to be the default if no other specifications of ownership are defined.
Tenants in common usually have different interests in ownership of the property. For example, Bob and Stan may own 25% each, while Steve owns 50%. Tenants in common may also acquire ownership at different times. However, these “fractional interests” do not mean that any one owner is entitled to use the property more than the others. The equal use of the property is known as unity of possession.
Tenants in common each hold independent ownership interests. This means that each owner’s share of the property may be sold, conveyed or transferred without prior permission from the other owners. Creditors may also come after one owner’s share of property for debts owed.
There is no “right of survivorship” for tenants in common. If one owner dies, his or her share of the property will be transferred according to that owner’s will or by the intestacy statute. Without a will, the owner’s heirs or beneficiaries will become the new owners of that share.
Joint tenants are different from tenants in common in the fact that they acquire equal shares of the property on the same property deed at the same time. The terms of joint tenants are stated specifically in the deed to the property.
A joint tenant agreement can be broken if one tenant sells his or her interest to someone else. This will change the ownership to tenants in common for all parties involved. Keep in mind that a tenancy in common agreement can be broken if one or more of the tenants buys out the other tenants, or if a partition action is filed with the court. A partition action allows an heir to sell his or her share.
Joint tenancy is the title that is usually held between spouses and other family members. It allows for the property to pass to the survivors of that person without having to go through probate court, saving both money and time.
One of the biggest differences between these two tenancies is what can happen to the property when one of the owners passes away. With a joint tenancy agreement, the interest belonging to the owner that passed away usually gets transferred to the surviving owner. For instance, if three people own the house jointly, the share of the person that passed away is divided equally among the surviving tenants. That is the right of survivorship.
Things to Keep in Mind
Married couples should carefully review their title when buying a home if they want the right of survivorship to be included. If a tenant in common passes away, their entire estate, including their share of the house, must be divided according to probate court rules.
Despite the benefits of joint tenancy, there are financial aspects you need to consider. In a joint tenancy, if one of the tenants owes money, creditors are able to attach the interest of the debtor to the property and force a foreclosure. They could do this even if the other tenant had nothing to do with the debt in question.
For any real estate transaction or questions about a deed, we highly recommend that you seek the guidance of an experienced real estate attorney.
CONTACT the Law Offices of Barbara Sherer to schedule a consultation.