When two or more people buy real estate together in Colorado, they must decide how they want to own the property together. The two most common options of co-ownership in Colorado are joint tenancy and tenancy in common. It is important to understand the difference between the two types of co-ownership, especially as it relates to what happens to the property if an owner dies.
Tenancy in common. When two or more natural persons or entities take title to real property as tenants in common, each has an undivided interest in the property. This interest is “freely alienable,” meaning it can be transferred by sale, gift, will, or inheritance without the consent of the other co-owner.
Tenancy in common means that each co-owner has the non-exclusive right to possession of the entire property and each co-owner also has the right to mortgage, sell, or otherwise transfer her own interest in the property without the consent of the other owners.
There can be any number of tenants in common. Their interests do not have to be equal but do have to add up to 100%.
Tenancy in common is presumed in Colorado, unless joint tenancy is expressly stated in the deed. Under tenancy in common, upon the death of a co-owner, the decedent’s interest will pass to his or her heirs, based on the decedent’s will or Colorado’s laws of intestate succession. This is usually considered to be the most important difference between tenancy in common and joint tenancy.
Joint Tenancy. To create a co-ownership in joint tenancy the deed must specifically state that the property is conveyed to the grantees in joint tenancy. This can be done using the phrase “as joint tenants with right of survivorship” or by using the abbreviation “JTWROS.”
The number of joint tenants is not limited to two persons. There can be any number of joint tenants. Additionally, the interests of joint tenants do not have to be equal but must still add up to 100%. Joint tenancy can only be created between natural persons (no entities).
On the death of any one of the joint tenants, the remaining joint tenants will continue to own the entire property including the interest of the deceased joint tenant. There is no need for probate or any deed conveying the interest of the deceased joint tenant to the remaining joint tenants. The interest of the deceased joint tenant does not pass to the heirs.
For married joint tenants, a divorce will automatically terminate the joint tenancy, and the former spouses will hold the property instead as tenants in common.
If you are interested in knowing how your property is currently titled, and if there are any advantages to changing how you currently own real estate, please feel free to contact me.