Q: My brother and I hold title to property as joint tenants. We wish to revise this status to that of tenants in common. I am not all that familiar with these terms, nor the necessary language establishing these types of holdings. My brother has consulted his attorney and has assured me that my interests will be protected. However, I am worried and would appreciate if you could address yourself to the consequences of such a change.
A: That's a more complex question than you probably realize. When you hold property as joint tenants, you and your brother own the entire property together. Normally, it is not divisible, and if one of the joint tenants dies, the surviving joint tenant automatically owns the entire propery.
Under a tenants in common arrangement, each tenant owns a divisible portion of the property. In your case, presumably it would be a 50 percent interest, although tenants in common can take title to different shares of ownership. For example, one tenant in common can own quarter interest, and the other tenant in common the remainder. Indeed, more than two people can own property as tenants in common.
Under the tenants in common arrangement, if you die before your brother, your interest in the land would go to your heirs, in accordance with the terms of your will.
It is important to recognize that when you own property as a joint tenant, even if you have a will, when you die the surviving joint tenant takes ownership of the entire property, regardless of the terms of your will.
Thus, you must look at this rather selfishly. Do you want your 50 percent interest to go to your brother or to your heirs upon your death? Do you want your brother's 50 percent interest to go to you if he should die first, or are you satisfied that your brother should be able to determine who will receive his 50 percent interest?
These matters are really outside of the scope of a legal interpretation, and rather depend on your lifestyle and your relationship with your family and your brother.
There are other considerations that cannot be ignored as you consider changing from a joint tenant to a tenant in common. For example, when you hold the property as a joint tenant, an obligation, lawsuit, lien or other debt occured by one of the joint tenants does not necessarily attach to the property itself.
Thus, if your cause an automobile accident and are sued, any judgment against you would not effect the land in question, if held as a joint tenant. On the other hand, if your are a tenant in common, your interest in the land can be attached - and indeed sold - to satisfy the outstanding debt, lien or judgment. Thus, again you must look to the respective life-styles and habits of each of the tenants.
Finally, if you live in the District of Columbia, title may have been taken between you and your brother to avoid the dower rights that exist in the District. As we have discussed on several occasions in this column, there is a dower right for both a husband and wife in the District, but that dower right is defeated by taking title as a joint tenant.
Thus, if you or your brother are married, or perhaps married but separated, the change from joint tenancy to tenants in common will automatically create an interest in your respective spouse of one-half of the property. This then becomes a problem, called a "cloud on a title," and unless the spouse consents to the sale of the property, you will have a difficult time transferring the property to anyone else.
You have asked for any forms to assist you in making your decision. I would suggest that you contact your family attorney, who will be in a better position to give you the kind of advice you need.While lawyers do use forms, at least they should be familiar with the consequences of these documents, and have the ability to make modifications and changes, where necessary.
Benny L. Kass is a Washington attorney. Write him in care of the real estate section, The Washington Post, 1150 15th St. NW, Washington 20071.