Joint Possession of Real Property

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 What is the Legal Definition of Real Property?

The legal definition of real property includes land and anything which is built upon, affixed to, or growing on that land. This includes any crops as well as man-made buildings.

Real property is property which does not move or which is attached to land. Personal property, in contrast, is property which can be moved or physically transferred.

The terms real property and real estate may be used interchangeably. In addition, real property may include anything which is permanently located under or within the land, which may include things found under the land, such as:

  • Gasses;
  • Oil; and
  • Minerals.

Another term which may be used for real property is the term premises.

What is a Real Property Legal Description?

Every piece of real property is unique and is in a unique location. This may become an issue when trying to identify a piece of real property.

The legal description of a piece of real property may be used in legal documents to describe, locate, and identify a plot of land or a building which is being transferred or sold. A legal description should include set boundaries and not natural landmarks, which may change over time.

Real property should be identifiable from the legal description. In other words, there should be no need for additional documentation which identifies the property apart from its legal description.

When is a Real Property Legal Description Used?

A legal description of real property may be used in many different situations. One main use is when a property is being purchased or sold.

In other cases, a legal description may be used for:

  • Distribution of property through a will instrument;
  • Conflicts over ownership of the home;
  • Records of deed and title, such as those kept in a county recorder’s office;
  • Transfers of real property through gifts;
  • Many types of real estate contracts; and
  • Boundary disputes between neighbors, such as easement disputes.

In these types of situations, a court should be able to clearly identify the real property which is in dispute. If confusion exists regarding the property itself, it will be more difficult to resolve any issues related to the property.

A real property survey report may be helpful if there is a real property legal description issue. This is a type of report which identifies any improvements to a property as well as identifies any major characteristics of the property.

How is Real Property Transferred?

Both personal property and real property may be transferred. The majority of states have statute of frauds laws which require that all sales which involve real property are reduced to writing.

This practice helps create a record of the transfer. Because real property cannot be physically moved between owners, the transfer is done symbolically in order to be legally recognized. This is typically accomplished by the use of a deed of title to the land.

The transfer of a written deed is recorded with the county recorder’s office in order to create a record of the change of ownership. Real property may be transferred in several ways, including:

  • By sale and purchase;
  • Through a gift from one individual to another individual; and
  • Through a devise, or a transfer through a will document.

What is a Conveyance, and How does it Occur?

A conveyance, in legal terms, refers to the transfer of the title of real property from one individual to another. A conveyance occurs when an owner of real estate transfers their ownership of that property to another individual or party.

This may include homes or other types of property, such as commercial real estate. Conveyances may occur in full or an owner may choose to transfer only a portion of their ownership interest.

Generally, statute of frauds laws require that any real estate sale must be recorded in a written contract. Therefore, a conveyance of title to real estate is required to be in writing when it involves a sale.

This is done to help avoid future disputes or breaches of contract as well as to establish the legal owner of the property for other purposes, for example, taxes. The grantor, or owner of the property, is required to use words of conveyance in order to transfer an interest in property to the individual who is receiving the property, or the grantee.

The transfer for an actual, physical deed is not required, so long as the grantor clearly expresses their intention to make the conveyance. The deed itself must:

  • Be written;
  • Be dated;
  • Be signed; and
  • Contain a description of the property which is being transferred.

In addition, for a valid conveyance to occur, the title should be free from defects, such as an improperly recorded title.

What is Joint Possession of Real Property?

When an individual purchases real property with a partner such as their spouse, family member, or business associate, by law, they have options regarding how to possess that property jointly. There are three categories of joint possession:

  • Tenancy in common;
  • Joint Tenancy; and
  • Tenancy by the entirety.

What is a Tenancy in Common?

A tenancy in common is a form of joint ownership where two or more individuals, referred to as tenants in common, own part of the property. A tenant in common:

  • May own the property in unequal or equal shares;
  • Has the right to use the whole of the property, not just their share of it; and
  • May pass on their share of the property to their heirs when they die.

A tenancy in common is the most common form of joint possession. If the category of possession is unclear, the majority of courts will assume a tenancy in common exists.

What is Joint Tenancy?

A joint tenancy is similar to a tenant in common except that when a joint tenant passes away, the remaining joint tenants inherit their share instead of their heirs. A joint tenancy exists only when four conditions are met, including:

  • All the tenants purchased the property at the same time;
  • All the tenants have an equal share;
  • All the tenants are on the title of the property; and
  • All tenants must have the same estate.

What is a Tenancy by the Entirety?

A tenancy by the entirety is a type of joint ownership which is recognized in about half of the states in the United States. This type of ownership applies to husbands and wives and treats them as a single entitled.

A tenant by the entirety inherits the entire property when the other tenant passes away. In addition, they cannot sell any portion of the property without the consent of the other tenant.

Should I Consult with an Attorney to Determine Which Type of Joint Possession I Should Choose?

Depending upon your needs for the property as well as your relationships with your co-owners, each type of joint possession has its own drawbacks and advantages. In order to help determine which type of joint possession you should choose, it may be helpful to consult with a real estate lawyer.

Your lawyer can advise you regarding the joint possession laws in your state as well as how each type will affect your situation. If you are considering purchasing property with other individuals, your attorney can advise you which is the best type of joint ownership for you.

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