Severing Joint Tenancy Without Consent; Legal Implications
Severing Joint Tenancy Without Consent
Severing joint tenancy without consent is legally permissible using the proper procedures, but consent of other owners provides stronger legal standing if challenged.
Severing joint tenancy without consent can occur through various legal means. One common method is by charging or mortgaging the property, enforcing a power of sale, or in cases of bankruptcy. These actions destroy one of the essential unities of joint tenancy, which is the unity of title. It’s important to note that a will leaving a share in the property to another person does not sever the joint tenancy.
Joint tenancy is a form of co-ownership of real property where each owner has an equal, undivided interest in the property and a right of survivorship. This means when one owner dies, their interest automatically transfers to the surviving owner(s).
To sever a joint tenancy, one owner needs to take unilateral action to destroy one or more of the four unities required for joint tenancy – time, title, interest, and possession. Common ways to sever include selling or transferring interest, partitioning the property, or getting an agreement from the other owners.
Severing without consent from other owners is possible but can be challenged in court if the action was not valid or done in bad faith. Actions like secretly selling interest or partitioning only part of the property could be overturned.
The safest approach is to get written consent from other owners when severing. However, someone can still sever without consent using legitimate procedures like filing a partition action suit or recording a declaration of severance document.
There are risks in severing without consent, including the possibility of litigation and forced sale of the entire property. Owners who sever should understand the legal implications and protections under the law. Consulting an attorney is recommended.
Severing A Joint Tenancy By Will
Severing a joint tenancy by will is a process by which a joint tenant can convey or give property on death by ending the joint tenancy.
There are three ways that a joint tenant may sever the joint tenancy: unilateral action, mutual agreement, and by a course of dealing intimating the interests of all were treated as tenancy in common.
When taking instructions for a will, it is important to ascertain the nature, extent, and ownership of the testator’s assets, raise practical solutions, and role-play scenarios which are provided for in the will.
It is important to note that a joint tenancy deed overrides a last will, but there are exceptions to this general rule.
A severance eliminates the right of survivorship, which means that at least a one-half interest in the property would then be preserved for the testator to convey by will or trust.
A joint tenant can sever a joint tenancy by transferring property to himself or herself without requiring that the co-owner(s) be notified.
Severing a joint tenancy can be done with or without the agreement of the other joint owner or by each party signing a written notice and then updating the ownership position with the Land Registry.
The different methods of severing joint tenancy include gifting, conveying the joint tenancy interest to oneself, and severance by transfer of personal property to oneself and another.
It is important to pay attention to state law before any attempt is made to sever a joint tenancy to make sure that legal requirements are met.
Sever Joint Tenancy Before Death
Severing before death requires following legitimate procedures, but allows a joint tenant to determine distribution of their share rather than relying on the survivorship right. It is possible for a joint tenant to sever the joint tenancy during their lifetime. This converts the ownership to a tenancy in common.
Reasons for severing before death include wanting to leave your share to heirs rather than having it pass automatically to the other owner(s), or wanting co-owners to have unequal shares in the property.
One joint tenant can sever the joint tenancy unilaterally without consent from the other tenants by recording a declaration of severance with the land records office.
Other common ways to sever are selling or transferring interest to a third party, partitioning/dividing the property, or getting written agreement from the other joint tenants.
Severing irrevocably converts the joint tenancy to a tenancy in common. Once severed, when a co-owner dies their interest can be passed down in a will rather than going to the survivor(s).
There are some risks in severing without consent, like potential litigation from other owners. It’s usually best to get consent from other joint tenants when possible.
Consulting a real estate attorney is highly recommended before taking action to sever, in order to understand the legal implications and process.
Implications of Severing Joint Tenancy Without Consent
Severing a joint tenancy without consent can have significant implications:
Loss of Right of Survivorship
Once the joint tenancy is severed, the right of survivorship no longer applies. This means that if one tenant dies, their share does not automatically pass to the surviving tenant(s). Instead, it becomes part of their estate and is distributed according to their will or the laws of intestacy.
Potential for Conflict
Severing a joint tenancy without consent can lead to conflict between the tenants. The other tenant(s) may feel blindsided or betrayed, leading to strained relationships and potential legal disputes.
Financial Implications
Severing a joint tenancy can have financial implications, including potential tax consequences. For example, if the property has appreciated in value, there may be capital gains tax implications. It’s important to consult with a financial advisor or tax professional to understand these potential implications.
Estate Planning Changes
Severing a joint tenancy changes how the property is handled in estate planning. Each tenant’s share can be bequeathed to anyone they choose, which can complicate estate plans, particularly in blended families.
