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Tenancy by the Entirety, Revisited

By: Paul Lewis, Branch Manager and Title Counsel, Pinehurst & Wilmington

While concurrent ownership is a subject we have all understood since Real Property 1, it can be easy to overlook various attributes and requirements for the three types of concurrent ownership. The most common form of concurrent ownership and the form that is naturally created without intent to do otherwise is a tenancy in common. Each tenant in common has an undivided interest in the whole property so there is a unity of possession (each owner has the same right to possess the property as the other owner). Because there are no other unities, a judgment creditor's lien against one owner attaches to that owner's undivided interest only and each owner's interest is separately inheritable.

A second form of concurrent ownership, joint tenancy with the right of survivorship, is only formed when a specific intent to do so is shown in the vesting document. The survivorship issue is the distinguishing factor from a tenancy in common. Upon the passing of one joint tenant, the title becomes vested in the surviving joint tenant. Like the tenancy in common, a judgment creditor's lien against one joint tenant does attach to that tenant's undivided interest. In addition to the unity of possession, a joint tenancy with the right of survivorship has the unities of time, title and interest. The joint tenancy must be created at the same time, in the same vesting document and the owners must have the same interest. Unlike a tenancy in common, this form of concurrent ownership is not created by operation of law.

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