Real Estate Alphabet Soup: T Is for Tenancy

Miles & Stockbridge P.C.

In my last post, “Real Estate Alphabet Soup: S Is for Survey,” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “T.”

T is for Tenancy. A “Tenancy” is a right to hold title to property and can take several forms of title or ownership. A “Sole Tenancy,” by definition, is an interest held totally and solely by one individual tenant. The most common forms of joint ownership are a “Joint Tenancy,” a “Tenancy by the Entirety,” and a “Tenancy in Common.”

“Joint Tenancy” is the right of ownership of two or more persons to own an interest in property during their respective lifetime, and upon the death of one tenant, his or her interest in the property descends to the surviving tenant or tenants, until the last survivor becomes the sole tenant. A joint tenant may dispose of his or her interest in a property. It is the right of survivorship that distinguishes a Joint Tenancy from other forms of co-ownership.

A “Tenancy by the Entirety” is the right of ownership in two legally married individuals to own together an interest during his or her respective lifetime. Unlike a Joint Tenancy, however, in a Tenancy by the Entirety, neither spouse can dispose of his or her interest or any part of the property without the consent of the other spouse. Upon the death of one spouse, the surviving spouse becomes the sole tenant of the property.

In a “Tenancy in Common” interest, there is no right of survivorship. As tenants is common, two or more persons take ownership in property, in whatever percentage or share of ownership interest is indicated in the document conveying title. Although each co-tenant’s ownership interest may not necessarily be in equal shares to the others, each of the co-tenants has an “undivided interest” in the property. Any tenant in common can transfer his or her interest in the property. And because there is no right of survivorship, upon the death of any co-tenant in common, the decedent tenant’s interest passes through his or her estate, rather than automatically descending to the surviving tenants.

A “Life Tenant” or “Tenant for Life” is a person whose legal right to remain in possession of a certain property is measured by that person’s life, or by the life of another person, so that upon that person’s death, the property descends to the designated remainder tenant.

In landlord-tenant law, a leased property may be leased to another person either for a pre-determined period of time, which is a “Periodic Tenancy,” or for an undetermined period of time, which is a “Tenancy at Will.” But once a lease term is expired or terminated, if the tenant does not vacate the property, and “holds over” beyond the expiration of the lease term, it then becomes a “Tenancy at Sufferance,” without legal authority for the tenant to remain in possession of the property, thereby entitling the landlord to seek legal remedies to remove the tenant.

Because of the many types of “Tenancy” and the legal implications of each, it is important to be specific in drafting any document conveying title in property in order to ensure that the intent of the grantor is clear.

In my next post, I will move on to the letter “U,” the next letter in this real estate “alphabet soup.”

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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