Richard B. Taylor, Attorney at Law - Ways of Holding Title in Real Estate

Ways of Holding Title in Real Estate

TYPES OF WAYS OF HOLDING TITLE IN REAL ESTATE

When one person holds title to land they are said to hold title in FEE SIMPLE in which they have an unqualified right of ownership to control, use, and transfer the property at will.

When two or more persons own a single piece of real estate they have created a co-ownership situation in which the owners will have to make a decision on how they want to take title to the land. The way they hold title to land will effect the way the land will be transferred upon the death of an owner. The way they hold title may have serious estate tax consequences. The way they hold title can also determine what rights a creditor has in order to attach the property to satisfy a debt. In the State of Illinois there are three ways for title to be held between the co-owners: TENANTS IN COMMON, JOINT TENANTS or TENANTS BY THE ENTIRETY.

TENANCY IN COMMON: This form of ownership is also know as Tenants in Common. Two or more owners each have a separate ownership interests in the land which can be sold, conveyed or transferred without the consent of the other owners. If two or more persons take title to land and there is no mention in the deed of the type of co-ownership, the ownership will be as Tenants in Common. With Tenants in Common there is not right of survivor ship should one of the owners die. When one of the owners dies their portion of the land will be transferred pursuant to their written Will. If an owner dies without a written Will, the land will be transferred pursuant to the Illinois intestacy laws, in which the owner's heirs will become the new owners of the decedent's share of the land. Land held in Tenants in Common may be attached by creditors. Owners of real estate as Tenants in Common can own equal or unequal shares in the property. Even though an owner may own unequal share of property they still can use the entire property. There is no physical division of the property.

JOINT TENANCY: This form of ownership is also know as Joint Tenants. Joint Tenants enjoy the right of survivorship, meaning that an owner's time of death their ownership interest ceases to exist and by operation of laws the surviving owner(s) automatically take the dead owner's share and rights to the property. Therefore, an owner's rights in the property held as Joint Tenants can not be transferred by a written Will because at the time of the owner's death they did not own an interest in that property. In order to create an joint tenancy ownership all tenants must take title at the same time, by the same document (only by way of a deed), have equal ownership interests, and have an undivided right of possession. Property held in Joint Tenancy may be partitioned, sold, or encumbered without the consent of the other owners.

A Joint Tenancy can be terminated at any time upon the conveyance of a joint tenant's interest back to themself or to any other person without the consent of any of the co-owners. Any conveyance of a joint tenant's interest will not affect the remaining co-owners joint tenancy. In other words, if A, B and C, own property as joint tenants and C deeds his share to X, A and B will still hold their share of the property as joint tenants, however, X will hold his share as tenant in common with A and B. Upon death of A their share will go to B. Upon death of B their share will go to A. Upon death of X their share will go to X's heirs.

TENANCY BY THE ENTIRETY: This form of ownership is also know as Tenants by the Entirety. It is only available to married couples on property that is being used as a homestead by both husband and wife. In other words it has to be the parties marital residence. Tenancy by the entirety will be terminated when the property is no longer used as the marital residence, upon death of either party, divorce, or by agreement. Tenancy by the entirety has all the benefits of survivorship of joint tenancy, plus the additional benefit of protecting the property from some creditors. In order for a creditor to attach a house held as tenants by the entirety the debt has to be a joint debt of both the husband and wife. If the husband or wife has a debt in their name only the property may not be partitioned, sold, or encumbered without the permission of both spouses. Furthermore, neither spouse may convey their half interest without the consent of the other.

Servicing clients in the following cities and towns in Will County: Beecher, Bolingbrook, Braidwood, Channahon, Crest Hill, Crete, Custer Park, Elwood, Forest Park, Frankfort, Homer Glen, Joliet, Lockport, Manhattan, Mokena, Monee, New Lenox, Peotone, Plainfield, Preston Heights, Rockdale, Romeoville, Shorewood, University Park, Wilmington, and Wilton Center.
DuPage County: Addison, Aurora, Bartlett, Batavia, Bensenville, Bloomingdale, Bolingbrook, Burr Ridge, Carol Stream, Chicago, Clarendon Hills, Darien, Downers Grove, Elk Grove Village, Elmhurst, Glendale Heights, Glen Ellyn, Hanover Park, Hinsdale, Itasca, Lemont, Lisle, Lombard, Naperville, Oak Brook, Oakbrook Terrace, Roselle, Schaumburg, St. Charles, Villa Park, Warrenville, Wayne, West Chicago, Westmont, Willowbrook, Winfield, Wood, and Woodridge.
Cook County: Alsip, Arlington Heights, Barrington, Barrington Hills, Barrington Woods, Bartlett, Bedford Park, Berwyn, Blue Island, Bridgeview, Broadview, Brookfield, Buffalo Grove, Burbank, Burnham, Burnside, Calumet City, Calumet Park, Chicago, Chicago Heights, Chicago Ridge, Cicero, Country Club Hills, Countryside, Crawford Countryside, Crestwood, Des Plaines, Elk Grove Village, Elmwood Park, Evanston, Evergreen Park, Flossmoor, Forest Park, Forest View, Franklin Park, Glencoe, Glenview, Glenwood, Golf, Hickory Hills, Hillside, Hoffman Estates, Homewood, Inverness, Kenilworth, La Grange, La Grange Park, Lemont, Lincolnwood, Markham, Matteson, Maywood, Melrose Park, Midlothian, Morton Grove, Mount Prospect, Niles, Norridge, North Northfield, North Riverside, Northbrook, Northfield, Northfield Woods, Northlake, Oak Forest, Oak Lawn, Oak Park, Oakglen, Olympia Fields, Orland Hills, Orland Park, Palatine, Palos Heights, Palos Hills, Palos Park, Park Forest, Park Ridge, Prospect Heights, Richton Park, River Forest, River Grove, Robbins, Rolling Meadows, Rosemont, Schaumburg, Schiller Park, Skokie, South Barrington, South Holland, Steger, Streamwood, Tinley Park, University Park, Western Springs, Wheeling, Willow Springs, Wilmette, and Winnetka.
Kane County: Allens Corners, Almora, Aurora, Bald Mound, Barrington Center, Batavia, Big Rock, Bowes, Burlington, Campton Hills, Carpentersville, Coleman, Dunham Castle, East Dundee, Elburn, Elgin, Exposition View, Five Island Park, Fox River Estates, Geneva, Gilberts, Hampshire, Kaneville, Lily Lake, Maple Park, Marywood, McQueen, Meredith, Middlebury, Montgomery, Mooseheart, North Aurora, North Plato, Nottingham Woods, Novak Park, Pingree Grove, Plato Center, Rainbow Hills, Richardson, Saint Charles, Scraper-Moecherville, Sleepy Hollow, South Elgin, South Park, Starks, Sugar Grove, Troxel, Udina, Valley View, Virgil, Wasco, West Dundee, Woodland Hills, Youngsdale.