Wednesday, February 26, 2014

Understanding The Importance of Tenancies When Holding Title To Real Estate Property in Maryland:

Tenancy is the relationship of the owners of a property and how the ownership is divided. There are 5 ways to hold title each with its own benefits:

Tenancy Agreement

  1. “Sole Owner” -- This is self-explanatory – it is when an individual owes the property by oneself.

  2. “Tenants by the Entireties” -- This exclusively for married couples. When one of the spouses dies the interest of the deceased spouse transfers automatically to the surviving spouse without the use of an estate. If divorce occurs then the “Tenants by the Entireties” converts to tenants in common.

  3. “Joint Tenants” -- when two or more people own a single property together; but want to have the same rights of survivorship as “Tenants by the entirety”. But to create Joint Tenants four aspects of title must be present:

    1. Possession – all owners must own the entire estate there must be an undivided possession of the property, where all owners have the right to enjoy the entire property.
    2. Interest – all tenants must have the same amount of interest in the property, if there is an unequal amount of owned interest the property will have to be held as tenants in common.
    3. Time – Each tenant must take possession of the property at the same time.
    4. Title – Each tenant must receive the title from the same source or grantor and from the same instrument which would be the deed. The deeds must have one of two things in it “Joint Tenants” or “Joint Tenancy with the Rights of Survivorship”; if one of these two is not written in deed it will be assumed to be tenants in common with no rights of survivorship. When a tenant dies the property automatically goes to the surviving joint tenants with no need of for an estate. The thing to remember is that the deceased cannot pass their interest in the property to their heirs.
      1. Joint tenancies will be severed if one of the joint tenant’s files for chapter 7 bankruptcy signs a contract or deed without the other joint tenants, which will convert to tenants in common.
  4. “Tenants in Common” - when there is unequal percentages of ownership between the owners/tenants, which has no rights of survivorship. When one of the tenants in common dies the interest in the property of the tenant passes to his/her estate, it is important to remember that an estate must be set up in order to convey or sell the property.

  5. “Life Estate Tenant with Powers Vs. Bare Life Estate”

    1. Life Estate Tenant with powers – An life estate tenant would create Life estate with powers in which after his death the property would transfer to the remainderman, and have full right to convey the property but not until the death of the life tenant. The Life Tenant will have the ability to encumber and convey the property during his life time which will sever the life estate.
    2. Bare Life Estate – is the same as a Life estate tenant with powers except the Life Estate Tenant cannot encumber or sell the property without the consent of the remainderman. After the death of the Life Estate Tenant the property would convey to the remainderman without a deed.  
   Understanding your options in tenancy is an important consideration with ownership of property and holding title.  Consult an attorney about tenancy and title to determine what is in your best interest.  If you are looking for answers to questions in Maryland you may contact attorney owned Excalibur Title and Escrow, LLC and ask to speak to our attorney about tenancy questions or concerns.

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