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 Larry Tolchinsky 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.”)
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.
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.
You May Be Interested In:
- Is Sharing Ownership of Florida Real Estate Causing a Problem For You? – Partition Actions in Florida
- Partition of Real Estate in Florida: Can You Divide Property Under Florida Law?
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