Where two or more people are purchasing property together, the real estate lawyer must also determine how they will take title, commonly asking whether they wish to hold the property as joint tenants or as tenants in common. This decision makes no difference in most of the rights and duties of the co-owners, but makes a great difference on how the land is treated upon the death of a co-owner. (Note: the word “tenant” in the terms “joint tenant” or “tenant in common” is an old English law term that in this context merely means “owner.”)
A joint tenancy involves the right of survivorship. This means that when one joint tenant dies, that owner’s share passes automatically to the surviving joint tenants. This happens whether or not the deceased owner had a will; in fact, it happens even if the deceased owner’s will attempts to leave his interest in the land to someone else. The joint tenancy is a popular form of co-ownership between husband and wife, because there is no need for a will or probate of the joint tenancy land, which can save significant time and expense. A small number of states also recognize a “tenancy by the entirety,” which is a form of joint tenancy (with the right of survivorship) that can only be created between husband and wife.
By contrast, tenancy in common is a form of shared ownership where two or more persons own land without the right of survivorship. Thus, when a tenant in common dies, the interest of the deceased owner passes to his or her heirs or the persons named in his or her will.