Level 2 - Types of Ownership Flashcards
Three Forms of Ownership:
- Ownership in severalty (individual or sole ownership, also known as tenancy in severalty)
- Co-ownership, sometimes called concurrent ownership
- Trusts
Ownership in severalty or
Estate in Severalty or
Tenancy in severalty
- individual or sole ownership,
- only one owner, whether that is a person, corporation, or other legal entity.
- Yeuta Owner (person) as LLC, cooperation, or other legal entity.
Note: Corporations Are People Too
Holding an estate in severalty isn’t just for people — it’s for corporations too!
Even though a corporation may have several different owners (or shareholders), the law views corporations as single, legal entities.
Property held by a corporation is ownership in severalty,
what is Co-ownership what are 3 types?
Two or more owners, sometimes called concurrent ownership
The 3 types are:
- Tenancy in common
- Joint tenancy
- Tenancy by the entirety
But First, Some Co-Ownership Concepts You Need to Know Before you can understand the differences between co-ownership types, you need to understand these 1st concepts:
Undivided interest means:
a type of interest that gives each co-owner the right of possession of the whole property, not simply a portion of it
But First, Some Co-Ownership Concepts You Need to Know Before you can understand the differences between co-ownership types, you need to understand these 2nd concepts:
Right of survivorship means:
Owner-sathi marema baki bacheka owner-sathi haruma badine
the statutory(permitted) principle of survivorship tenancy(possession of land or property as a tenant) which means that when one co-owner dies, their ownership interest reverts to the surviving co-owner(s)
Without the right of survivorship, a co-owner’s interest goes to their heirs if they die, instead of the remaining co-owner(s).
unities of co-ownership
These 3 forms of co-ownership (Tenancy in common, Joint Tenancy & Tenancy by the entirety) differ in both the way they are created and the way they are transferred. To understand how, exactly, those differences manifest, you first need to understand a group of conditions called the unities of co-ownership.
The Four Unities(condition):
- Unity of possession
- Unity of interest
- Unity of time
- Unity of title
- Unity of Possession:
- Unity of Interest:
- Unity of Time:
- Unity of Title:
To remember use acronym PITT. PITTsburgh
- Unity of Possession:
While this unity describes the same rights of possession as “undivided interest,” which means a type of interest that gives each co-owner the right of possession of the whole property, not simply a portion of it
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- Unity of Interest:
The unity of interest provides that each co-owner holds an equal share in the property.
It’s important to realize that the unity of interest (which gives each co-owner an equal share or ownership of the property) and the unity of possession (which gives each co-owner the right of the enjoyment of the whole of the property) can co-exist.
meaning this 2 condition can exist together.
Virginia has a specific interpretation of the unity of interest, which is that one joint tenant can’t be a tenant for life, while another is a tenant for years.
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- Unity of time:
The unity of time speaks to the requirement of co-owners to acquire their ownership or interests at the same time.
Consequently, any form of co-ownership featuring this unity or condition stipulates that no additional owners can be brought into the original agreement at a later date. If that is desired, a completely new contract would need to be created.
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- Unity Of Title:
Similar to unity of time, unity of title requires co-owners to acquire their property from the same transaction. Co-owners must also hold title under the same document (such as a deed or a will).
Adherence to this unity will naturally cause adherence to unity of time, so these unities co-exist.
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The Mysterious Fifth Unity
some of us in the biz recognize unity of person as the fifth unity. This unity refers to co-owners that are, for legal purposes relative to ownership of the property, a single indivisible unit.
legal purpose relative( as married couple) Some states view married couples as a single legal unit. This comes into play with tenancy by the entirety, a type of ownership reserved for marrieds only (and only exists in certain states).
Question A
Co-Ownership Type 1: Tenancy in Common
Question B
What’s Special About Tenancy in Common?
Answer A
is the most common form of co-ownership for unmarried co-owners, but that’s not why it’s called that… it’s just a happy coincidence.
Answer B
Tenants (unmarried) in common have:
- Undivided interest in the property
- The right of inheritance, not survivorship
- The ability to own unequal shares of the property
Each co-owner can sell, mortgage, lease, or transfer their ownership share without the permission of the others, so long as the transfer doesn’t interfere with the ownership rights of the others.
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- Undivided interest in the property
Tenancy in common requires only one unity among four unities: The 1st unity: the unity of possession. Also called undivided interest, it means that each co-owner has the right to use the entire property, regardless of what proportion of the property they own.
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- The right of inheritance, not survivorship
The right of inheritance means that if one co-owner dies, their share goes to their heirs, not the rest of the co-owners.
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- Unequal Shares
Tenancy in common does not require the unity of interest: Instead, co-owners can own unequal shares. An example would be 80/20 or 50/25/25, though they all have an equal right to use the property. Remember, that’s undivided interest.
Co-Ownership Type 2: Joint Tenancy
Joint tenancy is the second type of co-ownership.
- Requires all four unities
- In common law, comes with the right of survivorship (in Virginia, for joint tenancy to come with the right of survivorship, that has to be spelled out in the deed)
Four Unities
Joint tenancy requires the unities of possession, time, title, and interest. That means co-owners ALWAYS hold equal shares (unity of interest). They have undivided interest in the property (unity of possession). They purchased the property all together at the same time (unity of time) with the same title document (unity of title).
Right of Survivorship
Joint tenancy generally includes the right of survivorship rather than inheritance. If one joint tenant dies, their share of the property is absorbed by the remaining joint tenants, instead of passing to their heirs.
**IMPORTANT**
Virginia has abolished automatic survivorship. To be joint tenants with survivorship in our great state, that must be written in the deed.
Only humans can be joint tenants. Corporations (and robots) can never die, so they can’t own property as joint tenants.
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More information:
Joint Tenancy: In Deed!
The only way joint tenancy ownership can be transferred is by deed.
In the event of the death of a co-owner with the right of survivorship, the original deed sets in motion the equal and simultaneous survivorship rights of the surviving co-owners. They each receive an equal share of their dearly departed co-owner’s interest.
Transferring Ownership While Still Alive
However, if a still-living-and-breathing co-owner were to transfer their ownership by way of deed, something else altogether happens.
When a joint tenant (co-owner) transfers their ownership by deed, the new co-owner has ownership, but in a different form than that of the original co-owners. The original co-owners remain in their joint tenancy arrangement; the new guy has ownership of their share as a tenant in common relative to the rest of the gang.
Compare and Contrast: Joint Tenancy vs. Tenancy in Common
Right off the bat, you’ll notice that joint tenancy differs from tenancy in common in two ways:
- The interests of the parties are ALWAYS equal. (same)
- It includes the right of survivorship. (different)
The Right of Survivorship as a “Lazy Will”
Definition only not a question
The right of survivorship has sometimes been called a “poor man’s will” or “lazy will,” because the property will be deeded directly to the person inheriting it without going to probate, despite what it says in the decedent’s actual will. (Probate is the expensive and complicated process of having a judge execute someone’s will.)
However, you probably still want to invest in a will, since joint tenancy only affects the property in question, and not any of the rest of your estate.
Joint Tenancy Is Permanent(ish)
Additionally, unlike with a will where you can change your heir based on which of your grandchildren is currently your favorite, you can’t change who is in a joint tenancy agreement without dissolving the agreement (which is called partition) and reforming it with other co-owners.
You Still Gotta Pay Taxes
Sometimes people assume that, because a property held in joint tenancy bypasses probate when a co-owner dies, it also bypasses estate taxes. I think we can all agree this sounds like wishful thinking. The IRS is going to collect those taxes, whatever kind of tenancy you have.
On the upside, estate taxes only kick in on estates north of $5 million, so if you have that problem, well, congrats.
What is Partition and how it works?
a party does not have to die to get out of either of the two types of co-ownership we’ve discussed thus far (tenancy in common and joint tenancy).
it’s a parties can get out of these co-ownership situations by acting on their right of partition.
Partition is the ability to divide certain forms of co-ownership into separate interests or to convey a partial interest in a co-owned property unilaterally.
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Partition: Voluntary or Not
Partition can be done pleasantly, or at least voluntarily if all parties agree, by dividing the property so each party owns a portion in severalty. If the parties can’t come to an agreement on how to proceed, one co-owner can always sue the others to legally dissolve the co-ownership and either divide the property itself, or divide the gains from the sale from the property. This is called a partition suit.
Co-Ownership Type 3: Tenancy by the Entirety
Tenancy by the entirety is a form of co-ownership for married couples only, where legal spouses each hold an equal and undivided interest in the property which cannot be conveyed or encumbered without consent of the other. Just like joint tenancy, it comes with the right of survivorship.
Because tenancy by the entirety is a co-ownership between only two people, if one of the co-owners dies, the surviving spouse would own the property in severalty.
There are 26 states that recognize tenancy by the entirety. Virginia recognizes tenancy by the entirety for married couples.
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Community Property States
There are nine states that are community property states. Community property states operate on the idea that all property acquired during a marriage is acquired due to the shared effort of both partners. Therefore, it’s equally owned by the two of them.
In community property states, any property that is acquired during a marriage is considered to be owned equally by both spouses, and cannot be sold without the signatures of both spouses.
This applies to both real property (like houses) and personal property (like washing machines).
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Everyone Else
In states that recognize neither tenancy by the entirety nor community property, married co-tenants choose to be tenants in common or joint tenants when they take title, just like any other co-tenants.
They specify on their deed how they want to hold the property.
******CONCLUSION*********
so out of 50 states:
26 states including Virginia: tenancy by the entirety (for married couples)
9 states: Community Property States
Other Remaining,
15 state: Let spouse choose whether tenancy by the entirety or Community Property States
Community Property States
There are nine states that are community property states. Community property states operate on the idea that all property acquired during a marriage is acquired due to the shared effort of both partners. Therefore, it’s equally owned by the two of them.
In community property states, any property that is acquired during a marriage is considered to be owned equally by both spouses, and cannot be sold without the signatures of both spouses.
This applies to both real property (like houses) and personal property (like washing machines).
Tenancy by the Entirety: Taking the Fifth
Tenancy by the Entirety: Taking the Fifth
Remember the mysterious fifth unity we talked about earlier? The fifth unity is the unity of person and states that co-owners are, for legal purposes relative to ownership of the property, a single, indivisible unit. This is the main distinguishing point between tenancy by the entirety and community property: Property held in tenancy by the entirety is held not half and half by each spouse, but by a third entity, a sort of legal fictional person.
So, in addition to the four unities required for joint tenancy (possession, interest, time, and title), tenancy by the entirety also requires the unity of person. That’s a grand total of five, count ‘em, five unities!
How to Terminate a Tenancy by the Entirety
There are three ways to end a tenancy by the entirety:
- By death: To be avoided, if possible. When this does occur, it results in tenancy in severalty.
- By agreement: If the spouses both agree to terminate this ownership type, they can each sign a new deed to that effect.
- By divorce: When a couple divorces, their tenancy by the entirety automatically becomes a tenancy in common, unless a judge rules otherwise.
Chapter 2:
Ownership as a Business
As a real estate agent, there are also huge % of house sold as a investment properties: purchased as whether that’s a sole proprietor, part of a partnership, or a corporation.
Key Terms :
joint venture
sole proprietorship
limited partnership
general partnership
syndication
Real Estate Investment Trust (REIT)
Business Organization Forms
Sole proprietorships
Partnerships (general and limited)
Corporations (C and S corps)
Limited liability companies and limited liability partnerships
We’re also going to be talking about the ways that investors can own real estate as a group. Namely:
Syndicates
Joint ventures
REITs
Sole Proprietorships
A sole proprietorship is a business organization form assumed by an individual (or legal spouses as a single legal entity). As a sole proprietorship, a business operates as an extension of the owner — the business is INCAPABLE of owning real estate on its own.
For this reason, the owner is personally liable for the profits, debts, and obligations of the business. Consequently, the owner’s personal assets are at risk in the event of business failure or debt.
This type of organization can operate under the name of the owner or another name, just so long as it is properly registered with the state.
DO NOT BE CONFUSE, THIS IS NOT LLC
What protections do a sole proprietor’s personal assets have from their business’s losses and liabilities?
None, Sole proprietor are personally liable for their businesses