Tenancy is HOW YOU TAKE TITLE on the Deed to the property. Title to real property may be held by individuals, corporate entities or trusts. Following are the basics about each type of tenancy. Please reach out to us directly to discuss your personal situation further as we want to title the property as you desire. The manner in which you take title can have tax and legal implications.
Sole Ownership
is likely for you if you are the only purchaser and are not married.
- Example: Jane Smith, unmarried, as sole owner.
- Tip: A man or woman who is not married generally will take title as a sole owner.
- Note: other alternatives would be to take title in a trust or corporate entity.
Joint Tenancy with Rights of Survivorship
is likely for you if you are buying the property with one or more parties and it is the desire that upon the death of any of the joint tenants that the surviving joint tenant(s) automatically absorbs the ownership interest from the deceased party.
- Example: John Doe and Jane Smith, unmarried, as joint tenants with rights of survivorship.
- Tip: We often see parties that are engaged to be married take title as “joint tenants with rights of survivorship” as it creates the closest tenancy to tenants by the entirety that is reserved for married couples.
- Note: Multiple parties can hold as joint tenants.
Tenancy in Common
is likely for you if each tenant desires their share, upon death to go to their respective heirs and not to their co-owner.
- Example: John Doe, a single man, as to an undivided 3/4ths interest, and Jane Smith, a single woman as to an undivided 1/4th interest, as tenants in common.
- -Tip: This is often the choice of business investors where one party may have a larger investment in the property than the other.
- -Note: Tenants in common may be either equal or unequal undivided interests.
Trusts
are legal documents that need to be created by an attorney prior to closing. Our office will review the trust to confirm it is appropriate to put title to the property in the trust and to determine the named trustee(s). It is actually the “trustee” that holds title pursuant to the terms of the trust for the benefit of the trustor/beneficiary.
- Example: Jane Doe, Trustee of the Mary Doe Revocable Trust dated May 1, 2015
- Tip: Trusts are quite popular and are seen when parties have done estate planning to determine this is the best way to hold their assets.
- Note: There are few lenders remaining that will lend directly to a trust. It is not uncommon to have to take title in a different tenancy and then transfer it into a trust at a later date.
Corporations, LLC’s or partnerships
are all other ways to take title. These entities must be formed prior to closing and be in good standing. There are a number of documents that need to be provided for review in advance. Contact us for further requirements.
DEEDS:
A deed is the legal instrument that is filed in the land records that indicates who the owner is and the designated tenancy; as discussed above. Generally this is not something you select prior to closing, the determination is made in the Contract of Sale in accordance with what is customary in the jurisdiction in which you are buying.
Special Warranty Deed
is the type of Deed used most often in Maryland and the District of Columbia. Grantor (seller) specially warrants that she did nothing personally during her ownership of the property that would create a defect in the title. Because the warranty is limited in time, the need for title insurance becomes more significant where special warranty deeds are typically designated.
General Warranty Deed
is the type of deed used most often in Virginia. Grantor (seller) giving a General Warranty Deed, warrants that the title is free of any defects, either prior to her ownership of the property or arising out of her ownership in the property. Grantor warrants to the Grantee (purchaser) that the title to the property is good from the beginning of time until the purchaser takes title.
Quitclaim Deed
gives no assurances called covenants or warranties, that the title is good. A quitclaim deed transfers to the Grantor (purchaser) any title that the Grantor (seller) has subject to whatever may be outstanding on title; such as a mortgage. This type of Deed is usually used to change the tenancy from one type to another, to correct a clerical error or to cure a title defect. Generally this deed will be marked “no title insurance/no title examination” to alert all those searching the land records that research was not done to confirm the state of title.
