Q: I am sure that you have written about this topic on several occasions. However, my wife and I are senior citizens, and we are living in a building that is about to be converted into a condominium. My wife and I have reluctantly decided to purchase a unit. However, we just do not know how we should take title to the unit, and seek your advice.
A: This question can and must be answered keeping in mind two basic concerns: First, a title point of view, and second an estate-planning point of view.
This column cannot respond to estate-planning concerns. Every person has different needs, desires and situations, and it is important for you to discuss this with your estate planning counselor.
However, from a title point of view, here are some general guidelines.
If you are unmarried and plan to take title in your own name, the deed should reflect that you are the "sole owner."
If you want to take title with a co-owner, there are three basic kinds of co-ownership arrangements:
1. Joint tenancy. This is a form of co-ownership between two or more persons whereby each person has exactly the same rights in the property. If one of the joint tenants dies, his or her title passes automatically to the surviving joint tenant -- regardless of what the will states. Say, for example, that A and B own property as joint tenants, with right of survivorship. If A dies first and leaves his property to C, B legally owns the property, regardless of A's will.
A joint tenant can convey his or her interest to another party, and at that time the joint tenancy is severed, and the new party would own the property as a tenant in common. It is advisable if you take title as joint tenants, to have the language inserted in the deed reflecting "with right of survivorship." h
2. Tenants in common. Under this form of title, each co-owner owns a separate and distinct estate in the property. In the event of the death of one of the co-owners, the estate of that co-owner is entitled to the interest in the property, rather than the other tenants in common.
For example, A and B own a condominium unit as tenants in common. A dies and his share goes to his estate, in accordance with the will he has written. This form of ownership is suggested for unmarried couples and other single individuals who do not want their investment to go to the other co-owner in the event of death.
3. Tenants by the entirety. For practical purposes, a tenancy by the entirety is identical to that of a joint tenant with right of survivorship, but is limited exclusively to a husband and wife situation. Under common law -- the basis of our legal system -- when a woman married, her legal status became one and the same with that of her husband, and the husband was considered the legal representative.
As a result of this concept of legal unity of the spouses, a co-ownership between husband and wife was developed, called the "tenancy by the entirety." Although this does resemble the joint tenancy, one major difference is that in a tenancy by the entirety, neither spouse can disturb the right of survivorship by conveying his or her interest to another party, as is possible in a joint tenancy.
Thus, you have three means of taking title in co-ownership. My recommendations -- without taking into consideration youu tax and estate consequences -- are as follows: Husband and wife should take title as tenants by the entirety. Single persons, two friends or other unrelated individuals should take title as tenants in common and spell out in a partnership agreement the terms of this co-ownership. Also make sure that the will is up to date in accordance with your wishes.
Joint tenancy should be reserved for such situations as a parent taking title with a child. However, bear in mind that if you take title as joint tenants with right of survivorship with your son or daughter, if ever there comes a need to sell the entire property, you will need to obtain your child's permission. CAPTION: Picture, COURT CONDOS -- Barret M. Linde is building this condominium project, called The Court, at 3rd Street and Maryland Avenue NE. It will have 66 apartments, each priced up to about $140,000.