Titling Florida Property Under a Tenants in Common Ownership Structure
When making preparations to review or establish title to Florida real estate, it is important to know the legal options for Florida property ownership. One of the more common ways to title property in Florida is by establishing a “tenants in common” ownership structure.
Here is a closer look at how “tenants in common” titling works as well as the legal consequences of owning property under this framework.
What Does Tenancy in Common Mean?
Broadly, tenancy in common refers to two or more individuals who each hold an ownership interest in the property. Under this form of ownership structure in Florida, each party with an ownership interest will own a fractional share of the undivided property.
In simplest terms, this means that each owner with a tenants in common property interest will be entitled to their own proportionate share of the property’s use, enjoyments and profits. Additionally, however, each owner of a proportionate share will also be responsible to the other ownership interests if they take more than their proportionate share of a property’s use, enjoyments and profits.
Unlike a tenants by the entirety ownership structure — which is a titling structure available only to married couples in Florida — a tenancy in common is not treated as ownership by a single legal entity. Instead, each party has the right to control their ownership interests, which includes having the ability to dispose of their share via their own estate planning.
As such, when a tenant in common owner dies, their share of the property does not pass to the other surviving owners. Instead, the deceased tenant’s ownership interest will pass to their estate, which will then be distributed based on the deceased’s estate plan or according to Florida probate law.
For a tenancy in common, then, each property owner will:
- Has the same right of possession as all other owners
- Hold ownership interests that can be in equal shares or unequal shares (there is a default presumption toward equal ownership, unless the parties state otherwise)
- Not be allowed to exclude the legal rights of another tenant who has a right to use, enjoy or profit from their share of the property
- Ownership interests of a deceased tenant are distributed based on that owner’s estate plan or Florida probate law
Florida’s Default Form of Property Co-Ownership Is a Tenancy in Common
It is important to note that Florida law rejects the presumption that property held by co-owners establishes a right to survivorship, as outlined in Section 689.15 of The 2017 Florida Statutes. A right to survivorship means that if an owner or owners pass away, then the surviving owners will then become the new owners of the property.
In other words, Florida defaults to presume that a deceased property co-owner will have their ownership interests distributed based on their estate planning documents. If there is no will or estate plan for the deceased, then the ownership interest will be distributed according to Florida probate law.
Given this law, it is important for co-owners who wish for surviving owners to receive a deceased owner’s property interest to title the property as “joint tenants with rights of survivorship.”
For more information on the legal titling of property as Florida co-owners, contact us to speak with a Florida estate planning attorney today.
The Judy-Ann Smith Law Firm helps clients with all aspects of estate planning and probate estate administration. To learn more, contact us in Jacksonville today at 904-562-1369.