In Florida, Shared (Joint) Ownership Can Be a Big Problem If a Creditor Stakes a Claim Against the Property in Joint Tenancy with Right of Survivorship

Posted By on December 17, 2013

Last Update: 08/01/16

In Florida, two people can own a piece of real estate (like a single family residence or a vacation condo) together even if they aren’t husband and wife, or related in any way. The most common form of ownership, where more than one person owns an interest in Florida real estate, is called a “joint tenancy” and it is one of three kinds of ownership possible in Florida (the other two are “tenancy in common” and “tenancy by the entireties.”)

 

surfside, florida

Here in Florida, you can choose to own a car, a condo, or a house as a “joint owner with right of survivorship” (image: Surfside, Florida)


 

Florida Joint Tenancy With Right of Survivorship Means Survivor Gets Full Ownership

Under Florida law, when you add the words “right of survivorship” to a joint tenancy, that means full title to the real estate goes to the owner that survives.  The “survivor” of the joint owners automatically owns 100% of the asset when the other joint owner passes away.  

Many deeds recorded in our real estate records will identity the owners as “joint tenants with right of survivorship”. Banks, realtors, title companies, etc., correspondingly, all recognize Florida real estate held as “joint tenants with right of survivorship” as being the sole property of the surviving tenant when one of the owners passes away.

Joint Tenancy With Right of Survivorship Must Be Intentionally Established by the Joint Owners

The creation of a Joint Tenancy with Right of Survivorship in Florida must be intentionally done by the joint owners.  As explained by Florida Statute 689.15, the law insists that the “joint tenancy with right of survivorship” be clearly identified as the chosen form of ownership between the parties:

The doctrine of the right of survivorship in cases of real estate and personal property held by joint tenants shall not prevail in this state; that is to say, except in cases of estates by entirety, a devise, transfer or conveyance heretofore or hereafter made to two or more shall create a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship; and in cases of estates by entirety, the tenants, upon dissolution of marriage, shall become tenants in common.

Joint tenancy with right of survivorship, therefore, is a common method of owning property in the State of Florida. However, it may not be the wisest choice for the owners in some situations.

Why?  One of the big reasons that this form of ownership may be problematic is because one of the owners may have a debt against them that creates a lien against their interest in the jointly owned real estate: something that the other owner (the debt-free joint owner) may not know anything about until the creditor starts demanding rights to payment against the jointly held property.

Surprise Factor of a Joint Tenancy With Right Of Survivorship: When a Creditor Becomes a Tenant in Common

Creditors can, and will, sue for unpaid debts. If a creditor successfully sues one joint tenant for an unpaid debt and gets a judgment against him (or her), then the creditor’s judgment can be filed of record, which will create a lien against the property held by the debtor-joint tenant .

It does not matter what the other debt-free joint owner wants. The issue is between the creditor and the debtor-joint tenant based upon the debt itself.

In order for the creditor to get paid, Florida law allows the interest that the debtor-joint owner holds in the property to be subject to levy and sale.

What about the other, unsuspecting  joint owner? The debtor-joint tenant’s interest can be sold without involving the other joint tenant — when the interest is sold the debt-free joint owner will then learn that Florida law says that the the joint tenancy is then severed — the debt-free joint owner will find him or herself as a tenant in common with the creditor or a third party.

Surprise!

Imagine how complicated this can become when the creditor is the Internal Revenue Service, or a Student Loan Lender, where the joint tenants are parent and child. Joint tenancies with right of survivorship are often parents and children, or spouses, or other loved ones — and sometimes these loved ones don’t always share their financial distresses with their joint tenants in advance of the creditor’s claim.

More Issues with Joint Tenancy with Right of Survivorship

The convenience of a Florida joint tenancy with right of survivorship has to be weighed against the risks inherent in trusting another person as a joint owner.

Anyone owning a piece of Florida real estate as a Joint Tenant with Right of Survivorship can be surprised to learn that a co-owner is able to transfer his or her interest in the Joint Tenancy to someone else. The joint owners don’t have to agree here; one joint owner can unilaterally transfer his or her interest in the house, or condo, or vacation home, without approval of the other owner.

Moreover, since the property is held jointly, a co-owner can block a good deal if he or she refuses to transfer the property, even if this seems to make good financial sense and it is what the original owner of the entire asset (before it was converted to joint ownership) wanted.

A good piece of advice if you are faced with a joint tenancy issue is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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Comments

20 Responses to “In Florida, Shared (Joint) Ownership Can Be a Big Problem If a Creditor Stakes a Claim Against the Property in Joint Tenancy with Right of Survivorship”

  1. Elizabeth Valentine says:

    Hi Larry: Hope you can answer a few questions. … My father is 91yrs with
    dementia. His 81 yr old girlfriend and I share Co-Guardianship of my Dad and I have Full Financial Guardianship. They own a Condo in Fla with “Joint Tenants with Right of Survivorship”. This Condo is not their
    permanent residents. ….What is the law on a situation like this? thanks

  2. Hi Elizabeth
    We cannot answer personal queries in blog post comments, so we’ve edited your comment to protect your personal information and ask that you give our office a call (see the toll free number above?) for a chat.

    Thanks,
    Larry

  3. Nir says:

    I wanted to discuss a consultation on how you would structure purchase and rental income of property from a non us person and to avoid probate when giving to U.S. citizen son.

  4. Happy to discuss if you want to give our office a call (see the toll free number above?) for a chat.

    Thanks,
    Larry

  5. Tammy says:

    Hello,

    What happens when two people own a residence but there is not joint tenancy….

  6. Hi Tammy,
    Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat. (We removed your personal info in the comment for your privacy and protection.)

    Thanks,
    Larry

  7. My father and I own property. I live there he does not. He hired a lawyer who filed suit to sell property….

  8. Hi Demise,
    Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat. (We removed your personal info in the comment for your privacy and protection.)

    Thanks,
    Larry

  9. Scott Levitt says:

    question:
    if a single family home (florida) is held in joint tenancy with survivor ship (2 people not related)…can 1 of the parties Quit Claim their ownership to another party.
    example: A & B own. A signs a QC from A & B to A & C (new party)?
    (something i just read said yes but when the new ownership is in place it becomes joint tenancy in common…not with rights of survivor ship) true or not true?

  10. Betty Csehi says:

    In the “More Issures with Joint Tenancy with Right of Survivorship” section of your Blog regarding this, you state that anyone can transfer his ownership to another without the consent of the other Joint Tenant. You say the joint owners don’t have to agree. In the next paragraph, you state that, since the property is held jointly, one of the co-owners can block a good deal by refusing to transfer. Isn’t that contradictory to what you said in the first paragraph??

  11. Hi Betty,
    Refusing to transfer isn’t the same as transferring. Happy to chat with you on this if you have a personal situation here. Please feel freee to give our office a call (see the toll free number above?) for a chat.
    Thanks,
    Larry

  12. mark anderson says:

    What happens when a joint owner remarry
    Does his new wife has any interest in property and can the previous wife put the new wife out in the event of death of the original co owner

  13. Hi Mark,
    Sorry if this is frustrating! Looks like you’ve a situation here — however, we’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll-free number above?) for a chat.
    Thanks,
    Larry

  14. Tim Crammer says:

    Under FL law if H+W own property as tenants by the entirety, but only one signed the note and mortgage when they purchased the property, and that spouse dies, in the event of default can the lender foreclose on and force a sale of (a) the mortgaged property, or (b) the decedent’s undivided one-half interest in the property? If (b), are the lender and surviving spouse converted to tenants in common such that the lender can then force a sale?

  15. Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat.
    Thanks,
    Larry

  16. Kay Merrick says:

    I’d like to note that while it may be common for children/family members to abuse parents financially, it is also common for “domestic partners” of our elderly parents to take advantage of them as well. In fact, every sign of elder abuse you noted, our father was subject to by his girlfriend of 11 years. From isolation of our father from his children, controlling the phone access, complete control of his finances, hovering at every financial and medical appointment all the while feigning to be just the doting “love of his life”. With that said, we are grateful that we caught her in time and that dad is now safe, along with what’s left of his assets, with his children. I cannot stress enough how important it is for children to pay attention to their elderly parents behavior, their relationships with their partners and support them in getting the right instruments of protection for their personal assets. Because of the relentless efforts of this girlfriend to get her hands on dad’s assets, we had to put everything in an Irrevocable Trust. I highly recommend you remain watchful especially when an unmarried elderly parent has a partner that seems too good to be true or they’re trying to keep you from your loved one…RED FLAG! Please seek legal advice on how to help protect your loved one…we did, and thank God.

  17. moni says:

    My friend’s parents flat out own a home. Subsequently, they added one child utilizing a quick claim deed, creating joint ownership, therefore, he owns 33 percent of the home. There is no will. Can the other siblings get the parents portion if they were no longer alive?

  18. Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog comments, so we ask you to give us a call (see the toll free number above?) for a chat. No charge.
    Thanks,
    Larry

  19. Peter Robinson says:

    Good morning.
    I am defending a lawsuit in Florida from my former friend who accused me of making defamatory comments ….

  20. Hi Peter,
    Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat about your situation. Your comment has been edited to protect your privacy.
    Thanks,
    Larry

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