901.372.5003 24/7 Live Call Answering
July 11, 2016 In Contracts, Estate Planning

Joint Property Ownership Pitfalls and Solutions

Joint Property Ownership Pitfalls and Solutions

joint property ownershipOur law firm has worked on a couple of cases lately involving joint property ownership; that is, property owned by a group of several individuals. Owning a piece of land or real estate with a group of individuals or family members can lead to many problems, a few of which we will discuss here.

What Happens to Real Estate When a Person Dies?

In Tennessee, real property typically passes outside of Probate in accordance with the publicly recorded property documents in the County where the property is located.  A person can also plan for the disposition of real property in a Will or Trust.  If you die owning real property in your sole name, though, it can cause significant problems for your Beneficiaries that can be avoided by proper planning.

In both cases I mentioned above, the group of individuals came into joint property ownership because of intestate succession (i.e., dying without a Will).  You may think that you do not need a Will because your property will pass to your heirs regardless.  However, there are many problems and burdens that your heirs will face if property passes to them through intestate succession.  Here’s what can happen if a landowner dies without a Will:

  • Land may pass to heirs who do not wish to be landowners.
  • Land may pass to heirs who do not know that they are now landowners (i.e. lost heirs).
  • Land may pass to heirs who are not prepared for the responsibility of owning real estate (i.e. paying real estate taxes, maintaining insurance, upkeep of the property)
  • If there is a mortgage, payments may be required very soon after the death of the original owner and before any inherited owner has a chance to determine how to address the new ownership – i.e. sell the property, allow it to be foreclosed upon, etc.
  • The title to the property will be unclear and extra effort will be required to determine all legal owners in a joint property ownership situation. It can be very difficult to locate heirs and to determine with certainty who all owns a piece of property, especially if some of the original heirs have died, or if the family isn’t in close contact or is spread across the country. A title search may be required, and title searches can be expensive.

Increased Costs for Inherited Owners

When a piece of property passes through intestate succession, when ownership is unclear, or when a piece of property is owned by a large group of individuals, there will be extra expense involved when the property is sold. As a general matter, the entire sales process will take longer than usual. Each separate legal owner must be found and consulted with.  Then, each owner must agree to all parts of the sale process (i.e. negotiating the price, negotiating and completing repairs, and signing all required paperwork).  It can be very difficult getting a group of family members or individuals to all cooperate and agree during the course of a real estate transaction.

Inherited owners who want to sell property can expect to have to do some additional work with the buyer’s title company such as filing probate documents, getting releases from TennCare, and dealing with potential creditors of the deceased person.  A title company may require proceeds to be escrowed for up to a year after the deceased person’s death.

Legal Issues of One Owner Can Affect Other Owners

Inherited and multiple owners can also come with their own personal problems.  A judgment lien or a bankruptcy filing of one inherited owner will immediately attach to the inherited property, which could cause delays and problems for any co-owners wishing to sell the property.

Ways to Avoid Common Problems of Joint Property Ownership

If you must own property with a group of individuals or family members, or if you desire to pass property to a group of people, there are ways you can accomplish joint property ownership which lessen the burden and expense involved. Speak with an Estate Planning Attorney or Property Lawyer about the best way to achieve your personal goals. For example, more effective “joint ownership” can be achieved in the following ways:

  1. Own as Joint Tenants with Rights of Survivorship. This type of ownership is common with married couples, but it can also be used with any individuals wishing to create this type of joint tenancy.  Upon the death of one joint tenant, the remaining tenant owns the property outright.  This results in protection from a debtor-tenant’s creditors because liens can only attach to the right of the debtor-tenant, which is nothing more than a “potential survivorship right.”  This protection ends if the non-debtor tenant dies and the debtor- tenant then owns the property outright.  One negative of this type of ownership is that the property will only pass to the other joint tenant, so the Estate of the first to die loses any equity to pass on to other individuals.  In addition, potential gift tax issues may arise since the Grantor is “gifting” rights to the property to the person they are creating a joint tenancy with.
  2. Own the Property in a Limited Liability Corporation.  Ask a business organization attorney about property ownership through an LLC. The rights of the members will depend on the structure of the LLC. Creating an LLC requires maintenance of paperwork to the State to keep the LLC active which will be required if the LLC wants to sell the property.
  3. Put the Property Into a Living Trust.  This is achieved by conveying the property to a Trustee on behalf of a Trust. (A Trust itself can’t own property; rather it must be an individual Trustee on behalf of the Trust.)  The property will then be maintained and distributed in accordance with the Trust Agreement.  A Living Trust allows the Grantor to make changes during his or her lifetime (therefore keeping control and autonomy) but also allows for the streamlining of management and an easy transition of the property upon the death of the original Grantor.  The successor Trustee can sell or manage the property outside of Probate, and depending on the Trust terms, without the input of or disruption to the Beneficiaries.

Beneficiary Deeds

Tennessee does not offer this, but some states allow the use of a Beneficiary Deed to clarify how a property is to pass upon the owner’s death. Essentially, a Beneficiary Deed lets a person name a beneficiary and only takes effect upon the death of the owner. Ask your Estate Planning Attorney about the availability of Beneficiary Deeds if you own property in multiple states.

Right to Partition

If you are tied up in joint property ownership, or if you own a piece of property with a group of individuals or family members and you want to end the relationship and go your separate way, you can. In Tennessee, you have the legal right to what is called “partition.” Speak with a civil litigation attorney about filing a partition lawsuit. In this kind of lawsuit, you ask the judge to partition the property, either “in kind” or “by sale.”

Need Help with a Property Ownership Issue?

Have questions about joint property ownership or other real estate issues? Please call us at 901-372-5003 or send Patterson Bray an email.

February 1, 2016 In Business Litigation, Civil Litigation, Contracts, Estate Planning, General

I No Longer Want to Own Property with a Partner – How Do I Break Up?

I No Longer Want to Own Property with a Partner – How Do I Break Up?

picket-fencesImagine you and a partner purchase a rental property in the hopes of generating additional income.  Or perhaps you jointly inherit some property.  You own the property as tenants in common, meaning that you each own a ½ interest. You’re each responsible for ½ the property taxes and expenses, as well as ½ of any rental income.

A few years later, you decide you want out.  The income (when there is any) doesn’t seem worth the headache, and in some years, you even wind up paying more than your share of the expenses because your partner can’t seem to keep a steady day job.  The two of you don’t get along anymore and you really just want out. What can you do?

The law in Tennessee does not require you to continue owning property jointly with another person if you don’t want to. If you can’t reach agreement with your partner about an exit plan, then you can file what is referred to as a partition lawsuit.    There are two ways a Court can partition, and it depends on the particular facts of any given case. You will likely need an attorney to help you navigate the particular circumstances of your case.

Partition “in kind”

If a Court partitions a piece of land “in kind,” it means the property will be physically divided among the co-owners – almost quite literally splitting the baby.  An example would be if two people owned a two acre tract of raw land and the Court simply divided it in half, giving each person one of the two acres.

Partition “by sale”

A partition “by sale” is exactly what it sounds like. The Court will order a sale of the property and then distribute the money proceeds to the parties. The  Tennessee Code provides that a party is entitled to a partition by sale if either (1) the property is situated such that it can’t be divided, or (2) when it would be manifestly to the advantage of the parties for the property to be sold instead of divided.   For example, a Court can’t split a house and give each person half, so it would instead order the house to be sold.

Expenses and Distribution of Income

What if you paid more than your share of expenses prior to filing the lawsuit, or what if you don’t think the rental income was distributed properly? In a partition lawsuit, you can ask the Court to award you that money in addition to what you are owed for your ownership interest. The key to recovering this additional money is proving the amount you are owed. Hopefully, you have kept, or can obtain, records concerning your income and expenses associated with the property. In some cases, you might be able to obtain financial records during the partition lawsuit that may help prove what you are owed.

Settlement or Partition Lawsuit?  We can help.

If you currently own a piece of property with another person and you’ve decided you no longer want to continue in the joint ownership, we can help you fashion a solution.  Filing a lawsuit should not be your first step in any dispute, but a partition action is an available legal tool if an agreement can’t be reached. We are experienced at helping our clients negotiate resolutions without the necessity of filing a lawsuit; however, because we are trial attorneys, we know our way around the courthouse and are prepared to file and handle a partition action on your behalf, if necessary.   Please call us today at 901-372-5003 if we can help you.