· Real Estate · 5 min read
Joint Tenancy vs Tenancy in Common: How Should You Hold Title?
The way co-owners take title decides who inherits a share, whether a creditor can reach it, and whether probate is needed. Compare the three main forms.
When two or more people buy property together, the deed has to say how they hold it, and that one line controls what happens when an owner dies, divorces, or gets sued. Joint tenancy with right of survivorship sends a deceased owner’s share to the surviving co-owners automatically. Tenancy in common sends it through the deceased owner’s will or, without a will, through intestacy. Married couples in the District of Columbia, Virginia, and New York have a third option, tenancy by the entirety, which adds protection against one spouse’s creditors. The choice between joint tenancy vs tenancy in common is yours to make, but if the deed says nothing, state law makes it for you.
Tenancy in common: the default for unrelated owners
Tenants in common each hold an undivided fractional interest in the whole property. The shares can be unequal (sixty percent and forty percent, for instance), and each owner can sell, mortgage, or leave their share by will without the others’ consent. When one owner dies, that share passes through their estate, which means probate, and the surviving co-owners may find themselves in business with an heir they have never met.
In Virginia and New York, a deed to two unmarried people creates a tenancy in common unless it expressly says otherwise, and the District follows the same approach. This form suits investors, friends, and relatives who contributed different amounts and want their shares to track their money. It works best with a written co-ownership agreement covering expenses, decisions, buyouts, and what happens if someone wants out, because any tenant in common can otherwise force a sale through a partition action.
Joint tenancy with right of survivorship
Joint tenants hold equal shares, and the defining feature is survivorship: when one dies, the property passes to the survivors outside probate, regardless of what the will says. That is why unmarried partners and parents adding an adult child often choose it. Our real estate practice sees it used most often for exactly that reason, and sometimes for reasons the owners have not fully thought through.
The tradeoffs are real. A joint tenant can sever the joint tenancy by transferring their interest, which converts the arrangement to a tenancy in common without the other owner’s knowledge. A creditor of one joint tenant can reach that owner’s share during their lifetime. Adding a child to the deed may be treated as a gift for tax purposes and can cost the child a step-up in basis on that share, which is a tax question worth asking before you sign. In Virginia, survivorship must be spelled out in the deed, typically with the words “as joint tenants with the right of survivorship”; an omitted phrase defaults to tenancy in common.
Tenancy by the entirety for married couples
Spouses in Virginia, the District, and New York can hold property as tenants by the entirety. It carries survivorship, but with two additions: neither spouse can sever it or transfer their interest alone, and a creditor of only one spouse generally cannot force a sale of the property to collect. That creditor protection is the main reason married professionals and business owners choose it for the family home.
The rules on how it arises differ. In New York, a deed to a married couple is presumed to create a tenancy by the entirety unless it says otherwise. In Virginia, the deed should state the intent expressly. Divorce ends the tenancy by the entirety and converts it to a tenancy in common, so a property settlement agreement should address what happens to the house rather than leaving it to the default.
Entities and trusts as alternatives
Co-owners of investment property often skip all three forms and take title in an LLC, which replaces the deed language with an operating agreement that sets ownership percentages, management, and exit terms. Our discussion of buying property through an LLC covers the financing and tax tradeoffs. Owners focused on avoiding probate while keeping full control during life often use a revocable living trust instead of adding a child to the deed; the estate planning side of our practice coordinates that with the deed, and our overview of what estate planning covers in the U.S. explains where real property fits.
Changing how you hold title
The form is not permanent. Co-owners can execute a new deed among themselves to convert a tenancy in common to a joint tenancy, add a spouse, or move the property into a trust or entity. Before doing so, check four things: whether the mortgage has a due-on-sale clause that the transfer would trigger, whether the jurisdiction charges transfer or recordation tax on the conveyance, whether the owner’s title policy continues to cover the new holder, and which deed form fits the transfer. Our comparison of warranty deeds and quitclaim deeds explains why a quitclaim is often the right tool for a transfer between existing co-owners and the wrong one for a sale.
If you are buying with a partner, a spouse, or an adult child and want the deed to match your intentions, a consultation with Capitol Law Partners can set the ownership form before closing rather than correcting it afterward. Schedule a consultation.
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.
Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.
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