Real Estate Guide

Buying Your Home - Questions and Answers
'Tenants-In-Common' and 'Co-ops'

• How can more than one person own title to the same property?
• What are the differences between the types of co-ownership?
• Is Ohio a 'tenancy by the entireties' state?
• Can a co-owner force someone off a shared deed?
• What is a 'cooperative'?
• Where do I get information on co-ops?

How can more than one person own title to the same property?

Real estate common law prescribes three ways in which property can be owned by more than one person at the same time. If more than one person own the same property, they are called co-owners, co-tenants or joint tenants. Most states recognize 'tenancies in common' and 'joint tenancies.' Some states may still recognize a third type called 'tenancy by the entirety' (no longer recognized in Ohio). Many jurisdictions refer to a joint tenancy as a 'joint tenancy with right of survivorship,' and a few States treat the phrase 'joint tenancy' as synonymous with a 'tenancy in common.'

What are the differences between the types of co-ownership?

1. tenancy in common
   A type of joint tenancy in real property without right of survivorship. All co-owners own equal shares, but their interests may differ in size.

   Tenants in common have no right of survivorship, meaning that if one joint owner dies, that owner's interest in the property will be part of his or her estate and pass by inheritance to that owner's heirs, either by will, or by intestate succession. Also, since co-owners each have an interest in the property, unless restricted by contractual agreement, each may sell or  mortgage it during their lifetime, like any other personal interest.
    

2. joint tenancy
   This is the co-ownership of choice for most married individuals if, as in Ohio, 'tenancy by the entireties' is unavailable. It is most  often referred to as Joint Tenancy With Right Of Survivorship (JTWROS). Unlike a tenancy in common, where co-owners may have unequal interests in a property, joint co-owners by definition have an equal share in the property and equal rights in the property, including the 'right of survivorship.'

   Right of survivorship means that if one owner dies, his/her interest in the property will pass to the surviving owner(s) by operation of law and without probate. The deceased owner's interest in the property cannot be inherited by his or her heirs. The last living owner then owns all the property, and when (s)he dies the property will be part of his or her estate.

   It should be noted that in some circumstances, deceased owners debts may be satisfied by his or her portion of ownership now owned by the survivor(s). In other words, the deceased's liabilities can sometimes remain attached to the property.

   The creation of a joint tenancy must include "four unities."

   • Time - co-owners must acquire the property at the same time.
   • Title - co-owners must have the same title to the property. All conditions must apply all owners.
   • Interest - co-owners must share equal interest in the property.
   • Possession - co-owners must share equal right to possess the whole property.

   If any one element is missing, the joint tenancy may be ruled ineffective, and the joint tenancy defaults to tenancy in common in equal shares.
    

3. tenancy by the entirety
   A type of joint tenancy of property that provides right of survivorship and is available only to a husband and wife. Ownership of the property is treated as though the couple were a single legal person. Should one spouse die, the entire interest in the property passes to the surviving spouse, without going through probate.

   The major of advantage to tenancy by the entirety is the ability to shield the property from the creditors of only one spouse. It can  also, at least partially protect the property where only one spouse is filing a bankruptcy. A lien can never be enforced against the property of a non-debtor spouse.

Is Ohio a 'tenancy by the entireties' state?

No! Tenancies by the entirety were repealed in Ohio Effective April 4,1985. However the lawmakers did grandfather existing tenancies so those created under the old law are still in effect as long as the four unities of time, title, interest, and possession plus a fifth unity of marriage have not been severed.

Can a co-owner force someone off a shared deed?

Although one simply cannot 'kick' a co-owner off a shared deed, in most states (including Ohio), a co-owner can often 'destroy' the tenancy and force the sale of a shared property by filing what is commonly referred to as a  partition action.

If a situation arises wherein the property itself cannot be evenly divided, or the division is disputed among the co-owners, the court orders a 'partition,' whereby the real property would be sold and the owners would split the proceeds, each receiving a share dictated by the proportion of their interest in the property.

(Note>> - the type of co-tenancy specified in the title must also be taken into consideration in court decision. See Tenancy In Common, Joint Tenancy with Right of Survivorship, and Tenancy By The Entireties. Each brings with it certain rights and obligations of the share holders, and distinct points of law that, in certain circumstances, may be excruciatingly complicated.)

It should be said, that in Ohio and most states the right to sue for partition is statutory. This means that the right to partition will usually supersede any language that may have been interjected into a co-ownership agreement. This generally provides co-owners of real estate with the right to force a partition sale. You should check your title and consult a real estate attorney to explain the language with reference to severance actions. Your lawyer will then explain if a partition action is prudent and possible.

What is a 'cooperative'?

A housing cooperative or co-op is a legal entity - usually a corporation or a derivative thereof - that owns real estate (one or more residential buildings). Each shareholder in the entity is granted the right to occupy one housing unit, sometimes subject to an occupancy agreement, which is similar to a lease. The occupancy agreement specifies the co-op's rules. The co-op can also be a commercial entity in which various businesses are shareholders in the real estate (a strip-mall).

Where do I get information on co-ops?

For information on co-operative housing, contact the National Association of Housing Cooperatives,