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Real property ownership: how should my ownership be documented?

Posted by Gayla Austin | Apr 16, 2020 | 0 Comments

Occasionally one of my clients will tell me that their property interests are protected because they hold the property as joint tenants.  The terminology in this area is important, because sometimes the terms "joint tenants", "tenants by the entirety" and "tenants in common" are used interchangeably if the distinction has become uncertain.  

The best place to start to sort out liability protection, if any, for property held with someone else, is to define the terms under Wyoming law. 

First, to establish a tenancy by the entirety, a party must prove five unities:  (1) unity of interest; (2) unity of title; (3) unity of time; (4) unity of possession and (5) unity of person.  For a tenancy by the entirety, unity of person exists only in the case of husband and wife.  Ideally, the document, usually a deed, that is transferring a property should indicate:  "to Joe Jones and Sue Jones, husband and wife, as tenants by the entireties".  However, while the statutory requirement to list the type of ownership on a conveyance document has existed for some time now, many older documents will not have the type of ownership specifically listed.   For that reason, the test listed above, 1 through 5, must be given to determine ownership.   Where property is owned by a husband and wife, it cannot be executed upon on a judgment against one of them. 

However, that is not true for the other two types of tenancies.  

Second, if the conveyance document does not mention a right of survivorship, and the parties are not married at the time of conveyance, a tenancy in common is created.  A tenancy in common is concurrent ownership of real property but with an individual interest.  This means that two or more parties have the right to transfer the ownership of his or her ownership interest at any time, and without the other.   For our purposes in determining liability, this means that a judgment creditor of one tenant in common may levy or place a lien on that tenant's interest in order to satisfy a judgment.   In other words, if two people are not married but own property, a creditor can execute on the one person's interest that allegedly owes the creditor, but not the other co-tenant's interest.  A common assumption is that if property is owned "jointly"  or together, a creditor cannot attach a judgment to the total real property.    One of the reasons the discussion includes this topic today is that many believe that if they own real property "jointly" there is no reason to protect their real property by placing it in a Limited Liability Company because it is already protected by joint ownership.  As we can see by the definitions of joint ownership, this is not the case. 

The third and last type of ownership is "joint tenants with right of survivorship".  This is another type of ownership of real property often used by married people because they believe it protects their assets or because they believe this type of ownership to be a proper estate planning tool.   One of the main differences with this type of shared ownership is what happens to the property when one of the owners dies.  The interest of the deceased owner gets transferred to the remaining surviving owner.  That is called the right of survivorship.  But that doesn't mean that the ownership interest of one of the owners cannot be executed on.  

The law in Wyoming is that for joint tenants with right of survivorship or tenants in common, one owner's interest alone IS subject to execution.  Only the tenancy by entirety interest will protect all of the property and the parties against execution.  Unfortunately, many conveyance documents do not indicate the type of ownership, even though it is a statutory requirement to do so.  Further, statutory provisions generally provide that a conveyance to two or more persons creates a tenancy in common unless it is shown that a joint and not a common tenancy is intended.  

For all of these reasons, it is beneficial for a property attorney to review your documents and determine how your real property is owned.  It may be beneficial for you to hold your property in a Limited Liability Company, which is discussed at this link, or to have your property in a trust, which is discussed on this link  What is a Trust?

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