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Shared Ownership of Land

Posted on August 22nd, 2018 at 4:58 PM

If you need to consult with an attorney on shared ownership of land issues, please contact the Erie County Bar Association's Lawyer Referral & Information Service.

When two (2) or more individuals wish to jointly hold title to real estate, there are three (3) choices as to how that group may hold the title. The choices are:

  1. Tenants by the Entireties.
  2. Joint Tenancy.
  3. Tenancy in Common.

The first type of joint ownership is Tenants by the Entireties, sometimes called joint tenants by the entireties. Only spouses may hold title in this fashion. The law treats spouses as a single marital unit and does not allow one spouse to sell any portion of the jointly held property without the agreement of the other spouse. Similarly, one spouse may not voluntarily place a lien on the property in the form of a judgment or mortgage. Also, a creditor with a claim against only one spouse may not lien the property by placing a judgment on it nor may that creditor sell the property by a Sheriff's Sale. Thus, even though one spouse may be in extreme financial difficulty, the creditors of that spouse may not reach any portion of the jointly held real estate. One very important exception to this general rule is that certain IRS liens of one spouse can attach to real estate owned by spouses as tenants by the entireties. Tenants by the entireties is further characterized by the doctrine of survivorship. Survivorship means that when one spouse dies, his or her interest in the property automatically passes to the surviving spouse, making the surviving spouse the sole owner of the property.

The second type of joint ownership is known as Joint Tenancy, or Joint Tenancy with Right of Survivorship (JTROS). Any two (2) or more people may hold title in this fashion, and they do not have to be related to each other. A characteristic of Joint Tenancy is that each joint tenant must own the same share. For example, if there are three (3) joint-owners, then, each must own one third. This way of ownership is also characterized by survivorship in that the surviving joint tenant or tenants will take the deceased joint tenant's share. Thus, if three people are joint tenants each owning one third, upon the death of one of the joint tenants, the two surviving joint tenants will each own fifty percent (50%).

The third type of joint ownership is called Tenancy in Common. Unlike the other two forms, Tenancy in Common does not follow the principle of survivorship. As a result, if one of the co-tenants dies, that co-tenants share passes into his estate to be distributed by his will or, if he has not made a will, by the Intestate laws of the Commonwealth of Pennsylvania. Unlike Joint Tenancy and Tenancy by the Entireties, co-tenants holding property in common may own differing shares. For example, one co-tenant may own ten percent (10%) and another ninety percent (90%). As with Joint Tenancy, the co-tenants do not have to be related to one another. Under both Joint Tenancy and Tenancy in Common, any of the co-tenants may sell or encumber their individual share, but may not sell or encumber the whole piece without the approval of all co-tenants. Similarly, a creditor of one co-tenant may only lien or sell by sheriff's sale that portion of the property owned by that co-tenant.

Information is current as of 3/2018.