Property ownership in Florida can be a complicated endeavor, especially when owned among several individuals. This shared ownership can introduce a host of legal complexities that require careful consideration. When property co-ownership issues arise, it’s advisable to seek assistance from an experienced attorney to effectively address these matters.
Florida recognizes several forms of joint property ownership, including tenancy in common, joint tenancy with rights of survivorship, and tenancy by the entirety. Each type of property ownership carries its own distinct advantages and challenges, requiring thorough evaluation.
In Florida, the default mode of joint ownership is known as “tenancy in common.” Unlike the other forms of joint ownership, tenants in common can have different ownership interest in the property. However, regardless of each co-owner’s stake in the property, each co-owner enjoys an equal right to use and possess the entire property. For instance, even if one co-tenant owns a 20% interest in the property, they still have the right to use and access 100% of the jointly owned property. In the event of a property sale, the proceeds are distributed based on each co-tenant’s ownership. When property is owned through tenancy in common, each co-owner retains the ability to sell, mortgage, or transfer their share of the property. Upon the passing of a tenant in common, their interest in the property goes through probate. Although owning property as tenants in common gives co-owners more freedom to transfer or sell the property, it does not provide protection against creditors.
Another form of co-ownership is “joint tenancy with rights of survivorship.” This form of ownership grants equal interest in the property to all co-owners. In the event that a joint tenant sells or transfers their ownership interest, the joint tenancy terminates and converts into a tenancy in common. An important effect of owning property as joint tenants with rights of survivorship is the avoidance of probate. Upon a co-owner’s death, their interest does not become part of their probate estate. Instead, their interest automatically transfers to the surviving owner.
Tenancy by the entireties is a form of ownership that is reserved solely for married couples and operates similarly to joint tenancy with rights of survivorship. Under this form of ownership, both spouses own equal shares in the property. If one spouse passes away, their interest automatically transfers to the surviving spouse, avoiding probate. To encumber or mortgage the property, the consent of both spouses is required. A spouse cannot sell, mortgage, or transfer his or her interest in the property without the knowledge and consent of the other spouse. This form of ownership offers additional creditor protection. Individual creditors of one spouse cannot levy the property. To have a claim to the property, they must be a creditor of both spouses. This form of ownership dissolves automatically upon divorce and becomes a tenancy in common. Even if the spouses later remarry, the ownership does not automatically revert to tenancy by the entirety.
When confronted with issues relating to co-owned property, it is important to contact a knowledgeable attorney to navigate Florida’s complex property laws. An attorney can advise you on your available options for resolving co-ownership issues while safeguarding your rights in the property. The Rice Law Firm has handled a wide range of property law cases for many years. If you would like to consult with an experienced attorney on these issues and other legal matters, please give us a call at 386-257-1222.
