What is the difference between joint tenants and tenants in common?

 

The difference between joint tenants and tenants in common is often perplexing but critically important for understanding property ownership rights particularly when there are Oklahoma probate issues. Let me try to explain how it works under Oklahoma real property law.

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The definitions – Joint Tenants – Tenants in Common

Joint Tenancy with a right of survivorship is where two or more individuals own real estate together and each has exactly the same rights in the property as the other owners or co-tenants. Upon the death of a joint tenant, the survivor has legal title and, unless fraud or a trust is established, the survivor will also acquire equitable title.

Tenancy in common is where all the owners have legal right of possession of the real estate but each owner has a separate and distinct title. Subject to the rights of the co-tenant(s), each tenant in common is equally entitled to the use, benefit, and possession of common property. A tenant in common may convey her interest in the real without the other tenants in common joining in the conveyance (unless it is homestead property, in which event her spouse must join). Tenancy in common is the default manner of taking title – if there is no evidence that the real estate was supposed to be conveyed as a joint tenancy, then title is held as a tenancy in common.

The similarities

  • Both Joint Tenancy and Tenancy in Common are ways of holding title to real estate.
  • Someone would use one of these methods when they own real estate with at least one other person.
  • Under both types, you purchase only a portion of the property, cooperating with other owners who purchase the remaining amount.

 

The differences

Major differences between holding title as a joint tenant and holding title as a tenant in common:

  • Upon the death of one joint tenant, his or her interest automatically passes to the surviving joint tenant, who becomes sole owner. This does not happen with a tenancy in common.
  • A tenant in common can freely sell her interest while a joint tenant can convey her interest in the real during her lifetime, but the joint tenancy interest cannot be devised and will not descend except possibly in the event of the simultaneous death of all the joint tenants.
  • Tenants in common may have different ownership interests. For instance, Tenant A and Tenant B may each own 40 percent of the real estate, while Tenant C owns 20 percent. However, joint tenants obtain equal shares of the property with the same deed, at the same time.

 

Example

An example of where joint tenancy with right of survivorship is commonly use is for homestead property owned by a married couple. The title will typically be held as “joint tenants with right of survivorship.”

Posted by Shawn Roberts

I write about and try to answer practical Oklahoma legal questions. I tend to focus on estate planning and business issues. I make a living as an attorney working for Resolution Legal Group in Oklahoma City. I am husband to Amy and the father of Sam and David. We live exactly in the path where the "wind comes sweeping down the plains."