Types of Property Co-Ownership Agreements
Some investment properties are co-owned between multiple parties. There are multiple types of co-ownership agreements that can be entered into for the legal sharing of real estate. This guide will provide an overview of the most common types of agreements and how they affect Utah property owners specifically.
This is not legal advice and we encourage you to consult a legal and/or tax professional before deciding on an ownership structure for your property.
Owning Investment Property With Others
There are many reasons a property investor may enter into a co-ownership agreement on a piece of real estate. These co-ownership relationships are common between family members, businesses, or other professional relationships.
Right of Survivorship
The concept of right of survivorship is relevant to most forms of property joint ownership. Right of survivorship refers to how a part-owner’s ownership interest transfers upon the part-owner’s death.
If three people jointly owned a property with a right to survivorship agreement in place, and one of the part-owners were to die, then the surviving owners would absorb the ownership interest of the one who passed.
Joint tenancy is a type of property co-ownership involving two or more people hold the property title together, with equal rights to use, access, and receive benefit from the property.
The joint tenants do not need to be related or connected in any way other than sharing the property title. Anyone can co-own a piece of real estate as part of a joint tenancy.
Because joint tenants hold equal rights to the shared property, neither party can sell the property without the permission of the other co-owners. Joint tenancy also means that if one of the owners has a lien placed against the property, it would affect all parties.
Joint tenancy with right of survivorship is commonly used in estate planning in order to keep property ownership within a family while avoiding probate
Utah law allows for joint tenancy ownership with right of survivorship, with property interest passing without probate.
Criteria for a valid joint tenancy in Utah include:
- Joint tenants must each own an equal share of a co-owned property.
- The joint tenants’ interest must begin at the same time.
- Joint tenants must all receive the title in the same deed or other instrument.
- All joint tenants must have equal right to possess and control the shared property.
Tenancy by the Entirety
Tenancy by the entirety is a form of co-ownership only available to legally married spouses. This “shared” ownership exists under the assumption that two married people represent a single legal identity. A married couple may choose to list both people on the deed, which will explicitly state that the property is held in tenancy by the entirety.
If one of the spouses dies, ownership of the property is automatically transferred entirely to the surviving spouse without the need for a will or any legal action to determine ownership. This transfer would also avoid probate.
While the title is held in tenancy by the entirety, neither spouse can sell the property without the permission of the other.
In cases of divorce, some states would require the title of the owned property to automatically turn into a tenancy in common (covered below), allowing either spouse can transfer their 50% of ownership to whomever they choose without needing permission from the other owner.
Tenancy by the entirety is a legal form of property co-ownership in the state of Utah, available to legally married spouses.
Tenancy in Common
Tenancy in common is a form of co-ownership that is similar to joint tenancy, except that each tenant owns their share of the property independently from the others.
For example, four individuals might co-own a property together, with one tenant owning 40%, another 10%, and two of them owning 25%. Each individual can make their own arrangements to sell their portion of the ownership, or to whom their ownership will pass upon their death (not necessarily the other owners).
If any individual in a tenancy in common relationship were to have a lien placed against the property to collect on owed debt, the lien would not affect the other parties that hold an independent interest in the property.
Tenancy in common is usually the assumed form of co-ownership in Utah, unless the parties are married. This ensures that ownership stake doesn’t automatically pass to the surviving stakeholders upon the death of one of the part-owners.
Community property ownership is available to married couples in 9 U.S. states. This type of co-ownership agreement allows spouses to hold title on a property together but as individual economic units, either with or without a right of survivorship.
Under this agreement, property value would automatically be split 50/50 upon divorce of the people sharing the property. Upon the death of a spouse, their interests in the community property does not necessarily pass automatically to the surviving spouse, unless there is an explicit right of survivorship outlined in the deed.
Some couples entering into a community property agreement may choose to not include a right of survivorship agreement, especially if there are children outside of the marriage to whom they would have their ownership interest go.
Utah is not a community property state, so this type of co-ownership is unavailable to property investor couples on Utah real estate.
Real Estate Management Service in Utah
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