Tag: #Whatis#JointTenantsWithRightsOfSurvivorshipFlorida

A. Life Tenant expenses include:

(1) All ordinary expenses incurred in connection with the administration, management, or preservation of the property, including interest, ordinary repairs, regularly recurring taxes assessed against the property, and expenses of a proceeding or other matter that concerns primarily the tenant’s estate or use of the property.

(2) Recurring premiums on insurance covering the loss of the property or the loss of income from or use of the property.

(3) Environmental – if attributable to the use by the Life Tenant.

(4) Extraordinary repairs – if the Life Tenant incurred an expense for the benefit of his or her own estate without consent or agreement of the Remainderman, he or she must pay such expense in full.[13] 

(5) The Life Tenant must pay for special taxes or assessments for improvements to the property that add value to the property; however, if the special taxes or assessments for improvements are reasonably expected to outlast the Life Tenant’s estate, then the cost may be divided with the Remaindermen.

VI.          Life Estate per autre vie.   Life estates may also be per autre vie, that is, for the life of a person other than the holder of the estate. The conveyance ”to A, for the life of B,” creates a life estate per autre vie.  More commonly, however, a life estate per autre vie, will come into existence if a life tenant conveys his interest. So if Mary, who has a life estate, conveys her life estate interest to Buyer, then all Buyer will have is an estate for the life of Mary.  

Even if a life tenant attempts to convey a fee simple to a purchaser, only a life estate per autre vie would be created.   In other words, a life estate holder can only convey their own life estate interest.  Moreover, even if they do convey their own life estate, they cannot destroy contingent or vested remaindermen rights.[14]

VII.         Enhanced Life Estates a/k/a Lady Bird Deeds.  Using a Lady Bird Deed, you can grant yourself an enhanced life estate interest in your own property and simultaneously grant your beneficiaries, called remaindermen, the real property upon your death.  A life estate obtained through a Lady Bird Deed is called an enhanced life estate.  The life estate is said to be enhanced because during the enhanced life estate holder’s lifetime they have all the characteristics of full ownership without the burdens that come with a regular life estate.  

We felt that an enhanced life estate is so unique that it deserved its own dedicated article.  So to learn about the: (1) History behind the Lady Bird Deed – Myth Busted; (2)  Comparative Chart; (3) What is a Lady Bird Deed (a/k/a Enhanced Life Estate); (4) Advantages of Enhanced Life Estates; (5) Example of an Enhanced Life Estate; (6) Regular Life Estate Distinguished; (7) How long does a life estate last (sounds silly); and (8) Uses for Medicaid Planning; please read our article – Giving the Bird. Lady-Bird Deeds.

VIII.       Tenants in Common (TIC).               When two or more people own property as tenants in common, the entire property is owned by the group of cotenants. Those cotenants may have equal ownership interests (i.e. A owns (50%) and B owns (50%) as Tenants In Common); or the cotenants may have unequal ownership interests (i.e. A owns (70%), B owns (20%) and C owns (10%) as tenants in common).  In other words, several parties can own the property in whatever different percentages they want.  Unless otherwise stated, the presumption is that the cotenants will all have equal interests;[15] but absent a family relationship between the cotenants or other evidence of donative intent, evidence that one cotenant contributed more than the other could overcome the presumption that the interests are equal.   That is why it is better practice to state the percentage of ownership right on the deed.

Each cotenant is entitled to possession, joint ownership, and control of the entire property (called Unity of Possession).[16] In other words the property itself is not physically partitioned, instead each tenant is said to own an undivided interest, and is entitled to possess the whole property.[17]

Tenants in common each have the unilateral power to use the property, exclude third parties from the property, receive their pro-rata portion of the income from the property, obtain partition of the property, alienate their share through sale or gift, place encumbrances on their share, and, on their death, pass their share to their beneficiaries or heirs by will or intestate succession.[18] “[U]pon the death of a cotenant, the deceased cotenant’s interest in the property subject to the tenancy in common passes to his or her heirs, and not to the surviving cotenant.”[19]

The share or interest of a tenant in common is fully subject to the claims of his or her creditors.[20]

Any party can sell their interest to anyone without notice to the other.  One of the key attributes that distinguishes a Tenant in Common from that of a Joint Tenant with Right of Survivorship is that upon the death of one of the Tenants in Common on the title, their interest does not automatically go to the other surviving co-tenants.  Instead upon the death of a co-tenant owning property as Tenant in Common, their interest goes to their heirs or as directed in their will.  To visualize it, upon the death of a cotenant owning a tenant in common, the transfer of interest is more vertical, going to the cotenant’s beneficiaries, but with a joint tenant with right of survivorship, the transfer is more horizontal going to the surviving joint tenants. 

IX.          Joint Tenants With Rights of Survivorship (JTWROS).  The principle feature of a joint tenancy is the right of survivorship. As a result of the survivorship feature, the property passes without the trouble and expense of probate. 

Owning a property as JTWROS means you hold title with someone else equally (i.e. 50%/50%  for two people, 1/3, 1/3, 1/3 for three people etc…) and when one of you dies the entire interest automatically passes to the remaining surviving joint tenant(s) rather than to the heirs of the one who died.  Note however, that if a co-owner conveys their interest to a 3^rd party, the property loses its survivorship status as to that portion and defaults to being held as tenancy in common.

The creation of a JTWROS in real property must be clear.  The magic language “as joint tenants with right of survivorship” should be used.[21] Just using terms like “joint,” “jointly,” “joint tenants,” or “joint tenancy” are insufficient, and will result in a tenancy in common.[22]  In order to create a JTWROS, four (4) “unities” are necessary: (1) Possession; (2) Interest; (3) Title; and (4) Time. 

• As to the unity of Possession, each joint tenant must be entitled to possession, joint ownership, and control of the property.[23] For example the unity of possession did not exist to create JTWROS between a husband and wife in jewelry designed for a man when the items were purchased by the husband for his personal and exclusive use.[24]
• As to the unity of Interest, the interests of each joint tenant must be identical; the share or interest of each joint tenant must be the same as that of the other joint tenant or tenants.[25] If the shares of the cotenants were not equal, the unity of interest would be lacking and the estate could not be a joint tenancy.
• As to the unity of Title, the interest of each joint tenant must have originated from the same conveyance or instrument. The required unities of title and time have given rise to the use of a straw man in cases where the grantor or transferor already owns the property and subsequently attempts to create a joint tenancy with another person through an indirect transfer through a straw man.
• As to the unity of Time, the interest of each joint tenant must have commenced simultaneously).[26]

As in the case of a tenancy in common, a joint tenant’s interest is freely alienable; may be mortgaged or encumbered; and is subject to creditor claims.  Because each joint tenant owns an equal share rather than the whole, a creditor of one of the joint tenants may attach that tenant’s portion of the property.[27]  

X.           Tenants by the Entireties (TBE). Only spouses may own property as tenants by the entireties (TBE).[30]   For spouses who are currently married, the property can be titled in both of their names and held as TBE.  This is one of Florida’s best forms of asset protection from creditors, because the property may not be forcefully divided by creditors to satisfy the obligation of just one debtor spouse.  Additionally, when one spouse dies, property held as TBE automatically passes to the surviving spouse.[31] 

When creating a TBE, grantees are typically identified as husband and wife. For example, property may be conveyed “To John A. Doe and Jane B. Doe, husband and wife” or “To John A. Doe and Jane B. Doe, his wife.” Notwithstanding, unless a contrary intention appears, a transfer of real property to spouses is presumed to have intended to create a TBE.[32] 

In order to create a TBE, five (5) “unities” are necessary: (1) Possession; (2) Interest; (3) Title; (4) Time; and (5) Marriage.  Designation of the grantees as husband and wife will not create a TBE if in fact the grantees are not married.  If the grantees are not married, a tenancy in common will result instead. 

Neither spouse can sell, mortgage, or otherwise encumber TBE property without the other spouse’s consent, or the right to act as the other spouse’s agent.[33] Moreover, one spouse cannot: forfeit property held as TBE;[34]  lease property held as TBE;[35] contract to sell property held as TBE;[36] or mortgage property held as TBE.[37]  So a property held as TBE may not be terminated by one spouse, rather both must sign.[38]

If one spouse previously owned property wanted to transfer it to their spouse as TBE it can be done.  Direct conveyances between husband and wife are authorized by statute.[39] The statute provides that the spouse holding title to real property can create a tenancy by the entireties by either conveying the property to the other spouse by a deed that declares that its purpose is to create a tenancy by the entireties or as more typically seen, by conveying the property to both spouses. The grantee-spouse need not join in the execution of the deed.  For example: For example, if H owns land in fee simple and wants to create TBE, he may convey to “H and W, his wife, for the purpose of creating an estate by the entireties” or “to W for the purpose of making the H and W tenants by the entireties.”

As far as creditors are concerned, if both spouses have a joint debt owing to a creditor, then their mutual creditor can collect against property held by both spouses as TBE to satisfy the joint debt of the spouses.[40]  However, unlike property held as TIC or JTWROS, property held as TBE is not available to answer for the individual debts of a singular spouse.[41]  Therefore, creditors of one debtor spouse cannot attach to property mutually held as TBE.[42]

As to powers of attorney (POA) for spouses, the requirement that both spouses sign to transfer or mortgage homesteaded realty may be accomplished through a POA.   One spouse may sign a power of attorney for the other spouse, or both spouses may sign a power of attorney to a third party to act as the POA.  But to be effective, the POA must be executed in the same manner as a deed.[43]

Spouses TBE will be considered terminated upon: (1) Dissolution of marriage, in which case, their TBE ownership interests convert to tenants in common [TIC]; (2) Both spouses conveying the property to 3^rd parties; (3) Both spouses conveying the property to themselves expressly as TIC or JTWROS.[44]

[1] State ex rel. Ervin v. Jacksonville Expressway Authority, 139 So. 2d 135, 138 (Fla. 1962)

[2] Fla. Stat §689.10 Words of limitation and the words “fee simple” dispensed with.—Where any real estate has heretofore been conveyed or granted or shall hereafter be conveyed or granted without there being used in the said deed or conveyance or grant any words of limitation, such as heirs or successors, or similar words, such conveyance or grant, whether heretofore made or hereafter made, shall be construed to vest the fee simple title or other whole estate or interest which the grantor had power to dispose of at that time in the real estate conveyed or granted, unless a contrary intention shall appear in the deed, conveyance or grant.

[3] Richardson v. Holman, 160 Fla. 65, 33 So. 2d 641 (1948)

[4] Ocean Beach Realty Co. v. City of Miami Beach, 106 Fla. 392, 143 So. 301 (1932)

[5] Raulerson v. Saffold, 61 So. 2d 926 (Fla. 1952)

[6] 689.18 Reverter or forfeiture provisions, limitations; exceptions.—

(1) It is hereby declared by the Legislature of the state that reverter or forfeiture provisions of unlimited duration in the conveyance of real estate or any interest therein in the state constitute an unreasonable restraint on alienation and are contrary to the public policy of the state.

(2) All reverter or forfeiture provisions of unlimited duration embodied in any plat or deed executed more than 21 years prior to the passage of this law conveying real estate or any interest therein in the state, be and the same are hereby canceled and annulled and declared to be of no further force and effect.

(3) All reverter provisions in any conveyance of real estate or any interest therein in the state, now in force, shall cease and terminate and become null, void, and unenforceable 21 years from the date of the conveyance embodying such reverter or forfeiture provision.

(4) No reverter or forfeiture provision contained in any deed conveying real estate or any interest therein in the state, executed on and after July 1, 1951, shall be valid and binding more than 21 years from the date of such deed, and upon the expiration of such period of 21 years, the reverter or forfeiture provision shall become null, void, and unenforceable.

(5) Any and all conveyances of real property in this state heretofore or hereafter made to any governmental, educational, literary, scientific, religious, public utility, public transportation, charitable or nonprofit corporation or association are hereby excepted from the provisions of this section.

(6) Any holder of a possibility of reverter who claims title to any real property in the state, or any interest therein by reason of a reversion or forfeiture under the terms or provisions of any deed heretofore executed and delivered containing such reverter or forfeiture provision shall have 1 year from July 1, 1951, to institute suit in a court of competent jurisdiction in this state to establish or enforce such right, and failure to institute such action within said time shall be conclusive evidence of the abandonment of any such right, title, or interest, and all right of forfeiture or reversion shall thereupon cease and determine, and become null, void, and unenforceable.

(7) This section shall not vary, alter, or terminate the restrictions placed upon said real estate, contained either in restrictive covenants or reverter or forfeiture clauses, and all said restrictions may be enforced and violations thereof restrained by a court of competent jurisdiction whenever any one of said restrictions or conditions shall be violated, or threat to violate the same be made by owners or parties in possession or control of said real estate, by an injunction which may be issued upon petition of any person adversely affected, mandatorily requiring the abatement of such violations or threatened violation and restraining any future violation of said restrictions and conditions.

[7] Schneberger v. Schneberger, 979 So.2d 981 (Fla. 4^th DCA 2008)

[8] Schneberger v. Schneberger, 979 So.2d 981 (Fla. 4^th DCA 2008)

[9] Sauls v. Crosby, 258 So. 2d 326 (Fla. 1st DCA 1962);.

[10] Stephenson v. National Bank of Winter Haven, 92 Fla. 347, 109 So. 424 (1926)

[11] Schneberger v. Schneberger, 979 So.2d 981 (Fla. 4^th DCA 2008)

[12] Fla. Stat. §713.801(3). Knabb v. Hill, 111 Fla. 272, 149 So. 335 (1933).

[13] “Mere knowledge on the part of a remainderman that improvements are being made by the holder of a life estate, and passive acquiescence therein, are not sufficient to charge him with the cost thereof.”  Under such circumstances, the Life Tenant cannot compel contribution from the remainderman. Williams v. Williams, 120 So. 2d 202 (Fla. 3^rd DCA 1960)

[14] Scott v. Fairlie, 81 Fla. 438, 89 So. 128 (1921).

[15] Martinez v. Ward, 19 Fla. 175 (1882).

[16] Beal Bank, SSB v. Almand & Associates, 780 So.2d 45 (Fla. 2001) 

[17] Andrews v. Andrews, 155 Fla. 654, 21 So.2d 205 (1945)

[18] United States v. Craft, 535 U.S. 274, 279-280, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002)

[19] Julia v. Russo, 984 So.2d 1283 (Fla. 4th DCA 2008)

[20] Pegram v. Pegram, 821 So.2d 1264 (Fla. 2d DCA 2002).

[21] Fla. Stat. §689.15 Estates by survivorship —The doctrine of the right of survivorship in cases of real estate and personal property held by joint tenants shall not prevail in this state; that is to say, except in cases of estates by entirety, a devise, transfer or conveyance heretofore or hereafter made to two or more shall create a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship; and in cases of estates by entirety, the tenants, upon dissolution of marriage, shall become tenants in common.

[22] Florida Uniform Title Standard 6.8

[23] Christensen v. Bowen, 140 So.3d 498 (Fla. 2014)

[24] Connell v. Connell, 93 So.3d 1140 (Fla. 2d DCA 2012)

[25] Beal Bank, SSB v. Almand & Associates, 780 So.2d 45 (Fla. 2001); Johnson v. Landefeld, 138 Fla. 511, 189 So. 666 (1939)

[26] Beal Bank, SSB v. Almand & Associates, 780 So.2d 45 (Fla. 2001)

[27] Hurlbert v. Shackleton, 560 So.2d 1276 (Fla. 1st DCA 1990); McDowell v. Trailer Ranch, Inc., 421 So.2d 751 (Fla. 4th DCA 1982) AmSouth Bank of Florida v. Hepner, 647 So.2d 907 (Fla. 1st DCA 1994). Beal Bank;

[28] Harelik v. Teshoney, 337 So. 2d 828, 828-829 (Fla. 1st DCA 1976)

[29] Weise v. Kizer, 435 So. 2d 381, 383 (Fla. 5th DCA 1983) ; rev. denied, 444 So. 2d 417 (1984).

[30] Maliska v. Dion, 62 So. 2d 4, 5 (Fla. 1952)

[31] Bendl v. Bendl, 246 So. 2d 574, 576-577 (Fla. 3d DCA 1971)

[32] Losey v. Losey, 221 So. 2d 417, 418 (Fla. 1969)

[33] Richart v. Roper, 156 Fla. 822, 25 So. 2d 80, 81 (1946)

[34] Smith v. Hindery, 454 So. 2d 663, 664 (Fla. 1st DCA 1984)

[35] Douglass v. Jones, 422 So. 2d 352, 354-355 (Fla. 5th DCA 1982)

[36] Parrish v. Swearington, 379 So. 2d 185, 186 (Fla. 1st DCA 1980)

[37] Leitner v. Willaford, 306 So. 2d 555, 557 (Fla. 3d DCA 1975)

[38] Douglass v. Jones, 422 So. 2d 352, 355 (Fla. 5th DCA 1982)

[39] Fla. Stat. §689.11

[40] Stanley v. Powers, 123 Fla. 359, 166 So. 843, 845-846 (1936)

[41] Sharp v. Hamilton, 520 So. 2d 9, 10 (Fla. 1988); Teardo v. Teardo, 461 So. 2d 276, 276 (Fla. 5th DCA 1985) ; Liberman v. Kelso, 354 So. 2d 137, 139 (Fla. 2d DCA 1978)

[42] Richardson v. Grill, 138 Fla. 787, 190 So. 255, 257 (1939) ; Kornberg v. Krupka, 118 So. 2d 790, 791 (Fla. 3d DCA 1960)

[43]Fla. Stat. §689.111 Conveyances of homestead; power of attorney.—

(1) A deed or mortgage of homestead realty owned by an unmarried person may be executed by virtue of a power of attorney executed in the same manner as a deed.

(2) A deed or mortgage of homestead realty owned by a married person, or owned as an estate by the entirety, may be executed by virtue of a power of attorney executed solely by one spouse to the other, or solely by one spouse or both spouses to a third party, provided the power of attorney is executed in the same manner as a deed. Nothing in this section shall be construed as dispensing with the requirement that husband and wife join in the conveyance or mortgage of homestead realty, but the joinder may be accomplished through the exercise of a power of attorney.

[44] Pace v. Woods, 177 So. 2d 779, 780 (Fla. 3d DCA 1965)