What does it mean to own property as a tenant in common?
A tenancy in common is when two or more people share ownership of a property based on a specific percentage. Each owner is responsible for their share of property taxes and maintenance.
A TIC has legal rights to the property within their percentage of ownership. When a TIC owner dies, the percentage of ownership will go into their estate to be distributed to heirs. It is also possible for a TIC to sell or mortgage their interest in the property without the other owner’s consent or input.
Properties owned by tenants in common are usually:
- Condos, flats, townhomes, and duplexes.
- Commercial properties.
- Recreational properties held by friends or colleagues.
- Agricultural land.
Tenancy in common ownership is unlike other types of ownership due to distinctions in estate planning and the extent of legal ownership. It helps to know a little bit about other forms of ownership.
Joint tenancy
Joint tenants each have more rights to the property than tenants in common. Instead of limiting ownership to a percentage, each property owner has the same legal rights and obligations as all other owners.
When one property owner dies, their interest in the property does not go into their estate. Instead, the other owner or owners will continue to own the property as they did prior to the other owner’s death. This estate planning tool may be referred to as a “right of survivorship.”
Tenancy by the entirety
Tenancy by the entirety is similar to joint tenancy. The difference, however, is that this classification is exclusively reserved for couples who are married at the time they take ownership of the property. Tenancy by the entirety has essentially the same survivorship rules as joint tenancy. If one spouse dies, the surviving spouse takes full ownership.
The couple is considered a distinct legal entity in this case where the couple, rather than two separate people, owns the property. Each spouse has the same rights and obligations regarding the real estate.
Neither spouse has the option to sell or divide their interest without the other spouse’s consent. Unlike a tenancy in common, one party cannot sell their separate interest.
How does owning property as a TIC impact my ability to sell it?
It is relatively easy to sell property when one owns it as a TIC. A TIC can sell their percentage of the property without another owner’s consent. This is commonly referred to as the “right of partition,” where you can sell, mortgage, or even assign your share to another person or entity.
It is possible to make a Tenants in Common Agreement to establish restrictions on sale or transfer if you get the agreement in writing. Still, a single tenant in common cannot sell the entire property without consent of the other owner. Generally, one owner cannot force any other owner to sell their percentage if they do not want to do that.
When do I want to have a TIC with my spouse?
Married couples may own property as tenants in common even though a joint tenancy or tenancy in the entirety could be preferable. Nonetheless, spouses may opt to own property as TIC’s for a variety of reasons. Below are just a few examples:
- One spouse wants to pass their interest to a child from a different relationship.
- One spouse wants to limit the authority of creditors from taking the full value of a property.
- The couple wants one spouse to mortgage the property for business purposes, but protect the other half of the property in case the business is unsuccessful.
Essentially, a couple may opt for a TIC arrangement for unique estate planning needs, address concerns with risk, or limit exposure because of outstanding debt obligations.
Can I kick out someone I share a home with as a TIC?
In general, a TIC cannot evict another TIC. Each tenant has equal rights and obligations to the property. There may be exceptions, such as instances of domestic or physical violence.
If you have a problem with someone who shares ownership of your home with you, you may want to talk to a lawyer about your options.
What are the pros and cons of owning property as a TIC?
Just like every other ownership method, there are benefits and drawbacks to owning a property with someone else as a TIC.
Advantages
- There is no right to survivorship, so the property passes to your heirs instead of to the other owners.
- Interests can easily be sold or transferred.
- Shares of the property may not have to be equal.
- All parties share in the upkeep and maintenance of the property.
- All parties have an equal right to use and enjoy the property, regardless of their percentage of ownership.
- It may be easier than other arrangements.
- The number of owners can change over time.
Disadvantages
- Every party must agree on maintenance and upkeep.
- Another owner could sell or mortgage their interest in the property without your consent or permission.
- Although everyone is responsible for maintenance and upkeep, owners must address shortfalls if another owner is not paying their fair share.
- Each party has the right to use and enjoy the property, even if they pay nothing to maintain or keep it up.
- All parties are responsible for taxes and debts associated with the property, and they must be paid in full even if everyone does not pay in proportion to their ownership interest.
- You may need to buy out someone else’s interest from their estate after they die.
Of course, what may be a benefit to one might be a disadvantage to someone else. For instance, it can be a huge benefit to be able to mortgage your portion of the property. However, it is often a disadvantage if the other owner puts a mortgage on the property. Even though the other owner can only mortgage their percentage of ownership, you may still have to deal with removing the mortgage when all the owners want to sell the property as a whole, for instance.
Get your Tenants in Common Agreement in writing.
Tenants in Common Agreements must be in writing. An oral agreement will not work to designate ownership interests. Most often, the deed or transfer document will set out how the owners hold the property, whether as tenants in common, joint tenants, or a tenancy by the entirety. A Tenants in Common Agreement can help to make sure everyone is on the same page, and held responsible, for the shared costs.
If you have more questions about a TIC or other property ownership arrangements, reach out to a Rocket Lawyer network attorney for affordable legal advice. If you need tax help, Rocket Lawyer can now match you with a tax pro for affordable and convenient tax filing services. Don't do your taxes™ – Let us do them for you.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.
