DAVID J. WILLIS ATTORNEY
Copyright © 2016. All rights reserved worldwide.
CO-OWNERSHIP OF PROPERTY IN TEXAS
With Comments on Joint Tenancy vs. Tenancy in Common
by David J. Willis, J.D., LL.M.
For purposes of most investor transactions, co-ownership is generally “tenancy-in-common” although other legal categories exist. This means that the interest of a co-owner, absent express provision to the contrary, passes directly to that person’s heirs—who may or may not be the other co-owner(s). And disregard the common meaning of “tenant” and “tenancy.” Traditional legal language can be misleading. In this context, these terms refer to owners not renters.
Attorneys often face co-ownership issues when advising on inheritance and probate avoidance. Inheritance in such cases may be determined by express language in a deed or a last will and testament, or in the absence of either, by intestacy provisions of the Estates Code. In some circumstances a co-owner may have no survivorship rights at all.
Co-Owners Who Are Spouses
Does a surviving spouse inherit the entire interest in the home when the other dies? Not necessarily. It is first necessary to determine if the deceased spouse died “testate” (with a will) or “intestate” (without a will). If a spouse dies intestate, property automatically vests 100% in the surviving spouse only if the property is community property and the deceased had no children—or, if there are children, all of them are the result of the marriage between these two spouses (i.e., there are no children from a prior marriage, an increasingly uncommon circumstance). See Estates Code section 201.003 for further explanation.
Co-Owners Who Are Not Spouses
Texas law presumes that if two nonspouses are named as co-owners, and nothing more is said, then they are tenants-in-common (Tex. Est. Code §101.002). This means they each person owns an undivided one-half interest in the property but there is no automatic right of survivorship. When one co-owner dies, the interest of the deceased co-owner goes directly to that person’s heir or heirs, either by will or by intestate succession. The recipient may or may not be the other co-owner. The line of succession may be vertical rather than horizontal.
Joint Tenancy with Rights of Survivorship (JTWROS)
Estates Code section 111.001(a) states the following as to non-spouses: “Notwithstanding Section 101.002, two or more persons who hold an interest in property jointly may agree in writing that the interest of a joint owner who dies survives to the surviving joint owner or owners.” Accordingly, business partners, or perhaps a brother and sister, may agree in writing to establish JTWROS. As to spousal community property, section 112.051 applies: “At any time, spouses may agree between themselves that all or part of their community property, then existing or to be acquired, becomes the property of the surviving spouse on the death of a spouse.” Section 112.052 further requires that such an agreement “must be in writing and signed by both spouses.” So long as the statutory requirements are met, no action or intervention by a court of law is required (Tex. Est. Code §112.053)—which, of course, is the goal most people have in mind when establishing JTWROS.
The simplest way to accomplish JTWROS is to recite language in the deed which expressly establishes survivorship rights. In order to make the intention of the parties plain on the face of the deed, this language should be included at the time that both persons receive their interest in the property. An example of a grantee clause that creates joint tenancy is “John Smith and wife, Mary Smith, as joint owners with rights of survivorship as provided by Texas Estates Code section 112.051, and not as tenants-in-common.” The intent and agreement of the co-owners is stated clearly, achieving a survivorship arrangement that has been dubbed the “poor man’s will.” In order to comply with the requirement that the agreement be in writing and signed by both husband and wife, both spouses (i.e., both grantees) should sign the deed.
Code section 121.152 imposes a caveat: In order for a joint tenant to inherit, the survivor must survive the deceased by at least 120 hours. If this does not occur, then “one-half of the property shall be distributed as if one joint owner had survived, and the other one-half shall be distributed as if the other joint owner had survived.”
Note that if property is currently held by two persons as tenants-in-common, they can convert this to joint tenancy by means of a survivorship agreement as provided in Estates Code section 111.001(a) or section 112.051 (depending on whether or not the property is community property). However, this method does not physically change the warranty deed, and many persons are looking for just that—a single title document that states both names and makes survivorship clear.
The Role of a Last Will and Testament
Even if a deed contains no survivorship language, each co-owner may make his or her wishes plain by executing a valid will that provides for inheritance of the deceased’s interest (Tex. Est. Code §101.001). The Estates Code is a fallback that comes into effect by default, in the absence of a will. Failing to make a will is equivalent to asking the State of Texas to determine how your property will be disposed of. See Tex. Est. Code §§ 201.001 et seq.
Deeds Prepared by the Title Company
When buyers arrive at a title company to close, they are often handed an assembly-line deed that contains no extra clauses favorable to them—unless, of course, their own attorney has negotiated the inclusion of such clauses. This is unfortunate, since a warranty deed is qualitatively different from the routine forms and disclosures that title companies prepare. It is the sole document that evidences title to the property and may also set forth significant conditions upon which the seller is selling and the buyer is buying. It is far more important than, say, a MUD disclosure.
It is worth the effort to customize the warranty deed so it suits one’s purposes. Generally, one should not expect the title company to assist with this. Title companies are insurance companies. They and their attorneys look out for what is in their interests, not yours. It is astonishing how many people, even investors, naively believe that the title company is concerned with their best interests and will draft documents accordingly. Not necessarily so.
If buyers want to hold title as joint owners with rights of survivorship, they must specifically ask in advance of the closing that appropriate wording and signature lines be included in the deed. Ideally, this intent should be reflected on the earnest money contract they sign to purchase the property.
What happens if a person dies both without a will and without a survivorship provision in their deed? Such property is often referred to as “heirship property” and, without curative measures, may be unsellable except perhaps privately by means of a deed without warranties or quitclaim.
A title company will not issue title insurance until heirship issues are first addressed and resolved. An affidavit of heirship is often used for this purpose (See Tex. Est. Code §203.001), followed by a consolidating deed signed by the heirs. The affidavit recites relevant facts concerning family history, identifies the heirs, and is usually signed by a family member with personal knowledge. The deed is then signed by the heirs with the goal of moving title into a single heir or perhaps a third-party buyer. Both documents should then be filed in the proper order in the real property records.
Adding Someone to the Deed
Clients often ask that their spouse or other person be “added to their title” so that the other person will have co-ownership and inheritance rights. Prior to the Estates Code, the old common law method was for the owner to transfer the property out to a third party (the attorney or some other trusted individual) who then transferred the property back into the two desired names with JTWROS language. Why this circuitous route? Because the common law required that JTWROS be established at the “inception of title”—i.e., at the outset.
Now, pursuant to Estates Code sec. 112.051, the owning spouse may deed the property directly into his or her name together with the name of the receiving spouse (i.e., both spouses are listed as grantees with rights of survivorship) and, so long as both spouses sign this “written agreement,” the statutory requirements are satisfied and JTWROS is created, with the names of both spouses appearing on the same deed.
If one’ goal is to add another person to the title, but not provide for JTWROS, then one can always convey a partial or percentage interest in the property (e.g., 50%) to the other party, but this does not result in a single document reflecting both names.
Liability on the Loan
Regardless of whether the result is tenancy in common or JTWROS, the added person does not become liable on the loan on the property. Liability on a loan occurs only when a note is signed. No signature on a note, no liability to the bank.
Information in this article is proved for general educational purposes only and is not offered as legal advice upon which anyone may rely. The law changes. Legal counsel relating to your individual needs and circumstances is advisable before taking any action that has legal consequences. Consult your tax advisor as well. Although we respect your confidentiality, this firm does not represent you unless and until it is retained and expressly agrees in writing to do so.
Copyright © 2016 by David J. Willis. All rights reserved worldwide. David J. Willis is board certified in both residential and commercial real estate law by the Texas Board of Legal Specialization. More information is available at his website, http://www.LoneStarLandLaw.com.