Several factors go into the decision to buy a home, e.g., price, location [location, location :-)], condition and financing. One decision is often over-looked, and that is how to take and hold legal title to the home. However, this decision will affect who can sign documents regarding the property, whether creditors can get to it, and how the property will be transferred on your death. Here are the typical ways to hold title to your home or other real estate.
This is how an individual holds title to property. The deed may say: “John Doe, a single person” or similar language. It means one person owns the property alone. This ownership form does not apply to property bought by married couples. However, if a married couple wants to put title in the name of one spouse, the deed could say “John Doe, a married person, as his sole and separate property.? When a married person takes title as sole owner, the spouse usually must consent to this and give up all rights in the property by a quitclaim deed or other disclaimer of interest in the property. A sole owner is free to transfer the property as he or she desires, and when the sole owner dies, the property passes by the person’s will unless a Transfer On Death Deed has been recorded.
There are several ways co-owners may take and hold title, including:
? Community property. For married couples in ?community property? states, this is one of the main ways the couple can hold property. Oklahoma is not a community property state even though an Oklahoma statute exists stating that a husband and wife may hold property as community property. 43 O.S. 207. No two community property states’ laws are alike. In fact, laws in one state may be completely opposite to those of another state on a particular issue. The right of a creditor to reach community property in satisfaction of a debt or other obligation incurred by one or both of the spouses varies from state to state.
? Joint tenancy. Available in almost every state, this ownership form is an option when all of the co-owners will each have an equal ownership interest in the property. In Oklahoma, the four unities of time, title, interest, and possession must be present to create a joint tenancy. The deed must say title is taken as ?joint tenants,” or as “joint tenants with right of survivorship,” and the owners must all take title at the same time. 60 O.S. 1991 ? 74 Each joint tenant has an equal right of possession, meaning none can exclude the others or claim a certain portion belongs to him or her. A joint tenant can usually sell his or her interest in the property without the consent of the other owners. If there are only two joint tenants and one sells his or her interest, a tenancy in common is created. If there are three or more owners, the joint tenancy interest ends for the interest sold, but stays in effect for the remaining interests. A lien on a debtor’s joint tenancy interest is extinguished if the joint tenant dies before execution on the lien. However, a levy or execution before the joint tenant dies destroys the joint tenancy and allows the creditor to reach the interest of the debtor. The most important characteristic of joint tenancy is that when a co-owner dies, his or her ownership interest goes to the other co-owners by operation of law, and not by a will. As a result of this feature, called “right of survivorship,” the last joint tenant will own the entire property. If two people own property and they want a comparatively easy way for the other person to receive their interest upon death, joint tenancy is an ownership form to consider. The surviving joint tenant only has to file with government entities a few documents to establish full ownership. 58 O.S. 912 If a co-owner of property wants to be able to give away his or her interest by a will, joint tenancy would not be a good way to hold title. Note, it is not a good idea to add your child as a joint tenant on the deed to your home if the primary reason is to simplify the transfer of the property upon your death (i.e., to avoid probate). Never, ever create a joint tenancy with a minor child!
? Tenants in common. Tenants in common are also co-owners of property. Unlike joint tenants, tenants in common do not have to have equal ownership interest in the property. Each co-tenant has an equal right of possession, and each can convey his or her interest without the consent of the other owners. Any tenant in common is free to sell his or her interest. If one co-tenant wants to sell the entire property and the others don’t, a sale can be had by filing a “partition action.” The most important characteristic of a tenancy in common is that when a tenant in common dies, the owner passes his interest to his heirs or his estate and not to the other co-owners.
? Tenants by the entireties. Many non-community property states, including Oklahoma, let married couples hold title as ?tenants by the entireties?. 60 O.S. 1991 ? 74 Basically, one can think of a tenancy by the entirety as ownership by married joint tenants. That is to say, when a spouse dies the surviving spouse becomes sole owner of the property. Tenancies by the entirety are founded on the somewhat antiquated legal fiction that the husband and wife are considered one person, and consequently, the husband and wife can not truly own the real estate concurrently because they only possess a single interest. Tenants by the entireties are a useful form of ownership because, at common law, creditors usually cannot seize that half of the property owned by the debtor’s spouse. In Oklahoma, however, the legislature qualified the common law tenancy by the entirety by the above statute which states that ?[n]othing herein contained shall prevent execution, levy and sale of the interest of the judgment debtor in such estates and such sale shall constitute a severance.? Because this qualification only applies in situations involving judgment debtors, and thus involuntary conveyances only, Oklahoma still applies the common law tenancy by the entirety in matters not involving judgment debtors. That is to say, a spouse may not sell or convey his tenancy by the entirety interest in the property without the consent of the other spouse. Thus, by disallowing individual voluntary conveyances but allowing individual involuntary conveyances, Oklahoma has a unique form of tenancy by the entirety, which in this writer’s opinion, should be used more often by couples living in Oklahoma.