Last Update: 1/25/19
Issues With Co-Ownership And Ways To Terminate A Joint Tenancy
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 married, 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.”)
Tenants by the Entirety
Married couples under Florida law are allowed to co-own residential real estate as “tenants by the entirety.” This means that title to the real estate is in both of their names. When either spouse passes away, the surviving spouse automatically becomes full owner of the entire interest in the real estate. There is no need to probate the deceased’s real estate interest because his or her interest in the property transfers to the surviving spouse by way of the right of survivorship, which is inherent in this form of property ownership.
Tenants in Common
Anyone who can legally own real estate in Florida can have a co-ownership interest in the property. Furthermore, there is no set legal limit on the number of co-owners real estate can have.
In Florida, “Tenants in common” is the default form of co-ownership in real estate. A tenancy in common is a form of ownership in which each co-tenant owns a separate fractional share of undivided property. It is characterized by each owner having the right to possession of the property as well as other rights granted by law.
The extent of each co-owners interest in the property generally depends upon how much they contributed to it. For instance, if one owner of a Miami Beach oceanfront condo paid 50% of the sales price, he or she owns 50% of the undivided interest in the property (co-tenants are presumed to own equal undivided interests).
In this form of ownership there is no right of survivorship. When a co-owner dies, their interest transfer to their heirs (by intestacy if there’s no will) or according to the co-owners wishes in their will.
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.
Ending Joint Tenancy or Co-Ownership of Florida Real Estate
Not everyone wants to have shared ownership in real estate. This is especially true if the owners are a married couple going through a divorce. Or, kids or grand-kids who inherit Florida real estate. It may not be financially prudent for them to share ownership in a piece of real estate, or maybe the co-owners just don’t get along.
3 Ways to Terminate a Florida Joint Tenancy
For those interested in learning how to end joint ownership in Florida residential real estate, then Florida law offers the following ways to terminate a joint tenancy:
1. Termination By Operation of Law.
By definition, “joint tenancies with right of survivorship” (JTWROS) exist for a limited time. That’s because this form of ownership ends when one of the joint tenants dies. The dying party’s interest transfers to the surviving owner or co-owners at some point in the future.
The Case of Foreclosure on a Joint Tenant
In the Moring case, a Florida lender filed a foreclosure action against Mattie Moring for failure to pay on a mortgage. As plaintiff, the lender joined Mr. and Mrs. Richard Roundtree in the foreclosure case because they were believed to have a shared interest in the property. DAD, INC. v. Moring, 218 So. 2d 451 (Fla. Dist. Ct. App. 1969).
They did. The ownership here was as Joint Tenants with Right of Survivorship. The deed to the property filed in the St. Lucie County real estate records specifically stated that Mattie Moring and Richard Roundtree were (1) joint tenants with right of survivorship and (2) on the death of either the estate would survive to the other tenant. (Mrs. Roundtree had a legal interest as Mr. Roundtree’s spouse.)
Problems arose when Mattie Moring went and got a loan on the property without bothering to tell Mr. Roundtree. Things got more complicated when Mattie passed away several months after the foreclosure lawsuit was filed.
Mr. Roundtree argued that he now owned the property free and clear. The bank didn’t agree and wanted him to cover the unpaid mortgage.
What happens now? Under Florida law, the court explained, the interest of the joint tenant terminates upon her death prior to the other joint tenant.
The mortgage on the joint tenant’s interest was a “defeasible interest” held by the lender. When Mattie passed away then the lien terminated because the interest held by the mortgagor terminated by operation of law.
The bank lost. The foreclosure action was dismissed by the trial court (and affirmed on appeal).
2. Sell it to a stranger.
One way you can end a joint tenancy in Florida real estate is to sell your interest in the property to a stranger. It is entirely permissible for someone who owns residential real estate in Florida to sell their interest to anyone of their choosing. DAD, INC. v. Moring, 218 So. 2d 451 (Fla. Dist. Ct. App. 1969).
Additionally, in Florida, a joint tenant of residential real estate may sell his or her interest in the property to a total stranger without the consent of the other joint tenants. Harelik v. Teshoney, 337 So. 2d 828 (Fla. Dist. Ct. App. 1976).
Mother Sells Her Joint Interest to a Stranger
In the case of Harelik v. Teshoney, Esther Lawrence conveyed some property in Volusia County to Charles Harelik and his mother, Stella Harelik. Stella was a widow. The deed was specific, conveying the tract to the mother and son as joint tenants with rights of survivorship and specifically not as tenants in common.
Sometime later, Mrs. Harelik conveyed her interest in the property to Lila Teshoney. Mrs. Harelik kept a life estate in the transaction. Charles wasn’t involved in this deal.
Stella Harelik died. Charles claimed full ownership and Lila said no, she had an ownership interest too. Charles filed a lawsuit to have the courts decide who held legal title to the land.
The court considered whether or not the Widow Harelik could gut that deed conveying the land as a joint tenancy with the right of survivorship all by herself.
Can someone who owns land as a JTWROS unilaterally terminate the right of survivorship? Yes.
Citing to the Florida Supreme Court in explanation, the court held it is Florida law that a joint tenant can destroy the right of survivorship. The requirement here is that when she does so, she must end her interest in a manner that prevents her from claiming by survivorship any interest in the subject matter of the joint tenancy.
Since Mother had transferred her interest in such a way that if her son had passed, she could not claim full title as JTWROS, she had ended the joint tenancy. The court called this ending the “unity” between mother and son as co-owners in the land.
So, you can terminate a joint tenancy in Florida land if you transfer your interest to a stranger, because you have done what courts consider to have destroyed “the unity of title” with your joint tenants.
2. Transfer it to another joint tenant.
Another way to terminate joint ownership of Florida real estate is for one co-owner to convey their ownership interest to another joint tenant (or tenants). If there are several joint owners, then the ones who are not involved in the transaction do not have to know about the conveyance, much less approve of it. Countrywide Funding Corp. v. Palmer, 589 So. 2d 994 (Fla. Dist. Ct. App. 1991).
The Case of Countrywide Funding Corp. v. Palmer
In the Countrywide case, Countrywide filed a foreclosure action against a piece of Florida real estate held in a deed jointly by a mother, Adelina Hentzschel, and her son, Jose Baca.
The deed was specific that mother and son owned the home as joint tenants with right of survivorship. Originally, mother Adelina had bought the real estate and then filed the deed as JTWROS for herself and her son Jose.
Later, another deed was filed. This was a quitclaim deed from mother and son to Jose Baca.
After this quitclaim to Jose was filed with the clerk’s office, Jose got a mortgage from Essex Mortgage Company and then refinanced with Bayside Federal Savings and Loan. Bayside then assigned the mortgage to Countrywide.
Then Jose Baca died. Mortgage payments didn’t get paid. The lender, Countrywide, foreclosed.
In the foreclosure action, it was proven that the quitclaim deed was forged. Mother Adelina had never signed that deed. However, Jose had done so.
By signing that deed, had Jose terminated the Joint Tenancy with Right of Survivorship with his mother? Yes.
The quitclaim terminated the joint tenancy with right of survivorship. Now, his mother owned the land as a tenant in common.
Jose had the power to convert that JTWROS to a tenancy in common, without his mother’s knowledge or consent. He terminated the JTWROS by transferring his joint tenant interest to himself as grantee.
The lender had the right to foreclose on the son’s undivided one-half interest in the tenancy in common which resulted from his deed to himself. As between the two innocents, the mother who had been the victim of forgery and the lender who had loaned money, the court sided with the lender.
(Other ways to end a joint tenancy include simply transferring the interest in the property to a family member. Also, one co-owner can seek to partition the Florida real estate. Partition is where the court orders the property sold because one co-tenant has sued another to end the shared ownership of the property. This usually happens when the property is inherited, after a divorce or break-up, or when a co-owner blocks a good deal by refusing to sell the property even if this seems to make good financial sense.
What Should You Do?
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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