While researching my Bourks, I came across this bounty land warrant for Francis Burke and Barnard Burke.
I haven’t confirmed that either of these men are connected to my Bourks yet, but I noticed something else. Handwritten after the description of the property is a phrase I had not seen before on any land warrants or patents: “as tenants in common and not as joint tenants.”
Once again, my worlds collide. The paralegal in me just had to know what that meant.
Whenever two or more people own property each person owns a share of all the property, even if they don’t necessarily own an equal share. The type of tenancy involved can determine how the property is handled after an owner dies or decides to transfer his or her share of the property.
When two or more people own the same property and are joint tenants, they each have equal ownership and equal right to dispose of the property. No joint tenant ever owns a larger share than any other joint tenant.
Joint tenancy also creates the right of survivorship. This means that if one owner dies, that owner’s interest in the property is transferred equally to the other owner(s). For example, if Joe, Sally, and Rex are joint tenants on a deed for 90 acres of land, each of them has a 1/3 share of that property. If Sally dies, her share of the property is divided equally between Joe and Rex, increasing each’s interest in the property to 1/2.
Joint tenancy only exists if the owners obtain their equal shares of the property with the same deed at the same time. If Sally decides that she wants to sell her share of the property, the joint tenancy ceases to exist and becomes a tenancy in common.
Tenants in Common
Tenants in common may own different shares of the property. Joe, Sally, and Rex may share ownership in the property, but Sally may own 50% while Joe and Rex each own 25%. Each of them will have a separate deed indicating his or her percentage of the property. They don’t even have to obtain the property at the same time. Sally may have owned the land by herself at some point, and then sold portions of the property to Joe and Rex years later.
There is no right of survivorship under tenancy in common. If Sally dies, her right of ownership in the property transfers to her estate and is distributed according to her Last Will and Testament or (if intestate) according to the laws of the state. Sally can indicate in her Will that her interest in the property is to be divided equally between Joe and Rex, but it must go through the probate process first.
Tenancy by the Entirety
Another form of ownership – Tenancy by the Entirety – is a form of joint tenancy only available to married couples. If either spouse dies, the property automatically transfers to the surviving spouse without going through probate. In most cases, the surviving spouse is also protected against any liens by creditors for debts owed by the deceased spouse. Neither party can dispose of his or her interest in the property without the consent of the other spouse. If the couple is divorced, it becomes a tenancy in common and there is no longer a right of survivorship.
Knowing the subtle differences in these types of ownership of property can help determine what may have happened to property owned by your ancestor when he or she died.
Do we share ancestors? Email me: lostancestors AT gmail DOT com
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