Q My friend and I plan to buy a condominium. Both of us are unmarried, and we will be contributing equally to the down payment. My income is higher than my friend's, and I will be paying a slightly greater percentage of the mortgage -- at least for the next few years. Do you have any recommendations as to how we should take title? Can I claim the tax deductions because they will benefit me the most?
A This question is raised frequently, especially in the Washington area, where property values are escalating and salaries are high.
In recent years, with the advent of a high rate of divorce and the passage of the Equal Credit Opportunity Act -- which opened up credit opportunities for women -- more and more singles are finding it desirable to share the benefits and burdens of home ownership.
As I have written before, there are three basic ways in which title can be held by another person: Tenants by the entirety for husband and wife. Under such an arrangement, both parties own the property jointly, with a right of survivorship. If one party dies, the other automatically owns the entire property, without having to go through the probate court for distribution of the assets.
Joint tenants with right of survivorship. This is similar to tenancy by the entirety, only the parties are not married. If one joint tenant dies, the other will receive the property automatically. They own the property together.
Tenants in common. In this case, each person has a divisible interest in the property to the extent of his or her ownership. It can be split equally, or one person can own a larger percentage than the other.
If you and your friend decide to take title as tenants in common, each of you would be able to use your interest in the property as you see fit. You even could sell or mortgage your interest in the property, although I doubt that you will be able to find an acceptable buyer or lender.
I recommend that you take title as tenants in common. If you were to take the property as a joint tenant with the rights of survivorship, serious complications could result if one of you should die while you still own the property.
If a joint tenant dies, the other will get the property automatically, regardless of what you put in your will. Lawyers call this an act "by operation of law."
Thus, under a joint tenancy arrangement, it is conceivable that if you die first and your friend dies shortly thereafter, your investment in the property will be lost because it will go to the estate of your friend. I doubt if either of you desires this.
Both of you should enter into a partnership agreement spelling out your respective rights and responsibilities while you are living and while you own the property. In addition, it is important to prepare a will to cover and protect your interests in the property. Your will can direct that if your friend is living at the time of your death, your interest in the property goes to your friend. But if your friend is not alive at your death -- or dies simultaneously -- you can will your share of the property to whomever you wish.
On the tax question, although the deduction for interest and real estate taxes clearly would give the greatest tax benefit to the higher-income partner, the Internal Revenue Service will not allow a taxpayer to assign the interest and the real estate tax deduction arbitrarily.
The law allows the deduction for interest and tax payments to the person who pays the money. If one of you pays a higher percentage of the interest and taxes, the IRS will permit that person to take the greater deductions. You should document your payments carefully, and your partnership agreement should spell out this understanding.
Benny L. Kass is a Washington attorney. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036. Readers may also send questions to him at that address.