Question 1

What is the difference between joint tenancy and tenancy in common in Florida?

Accepted Answer

The key differences: survivorship (JTWROS transfers automatically to the survivor at death; tenancy in common passes through the deceased owner’s estate via will or intestacy), equal interests (JTWROS requires equal shares; tenancy in common allows unequal shares, such as 60/40 or 70/30), creation (JTWROS requires express language in the deed; tenancy in common is the Florida default when no form is specified), creditor access (a creditor of one tenant in common can reach that tenant’s interest; a creditor of one joint tenant can also reach their interest, but the interest terminates at death), and transferability (a tenant in common can freely transfer their interest; a joint tenant can also transfer, but doing so severs the joint tenancy and converts it to tenancy in common).

Question 2

Which form of co-ownership is better for Florida investment property?

Accepted Answer

For investment property, tenancy in common is generally preferred because: it allows unequal ownership reflecting each investor’s capital contribution, each owner can transfer or devise their interest independently, it works well with joint ownership agreements that govern management and buyout, and it avoids the complication of automatic survivorship (which may not be desired among business partners). However, some investors prefer JTWROS for its probate avoidance benefit. The best approach for most Florida investment property co-ventures is to form an LLC: the LLC provides liability protection, operating agreement flexibility, and no survivorship issues. The investors hold LLC membership interests rather than direct property ownership.

Question 3

How does a Florida court determine which co-ownership form exists?

Accepted Answer

Florida courts look to the deed language: if the deed includes express survivorship language ("as joint tenants with right of survivorship, and not as tenants in common"), JTWROS exists. If the deed conveys to a married couple, tenancy by the entirety is presumed. If the deed does not specify a form of co-ownership, Florida law presumes a tenancy in common. Courts will also examine: the intent of the parties as evidenced by the deed and surrounding circumstances, whether the four unities of joint tenancy are present, and whether any severance has occurred. Ambiguous deed language is resolved in favor of tenancy in common because JTWROS requires express creation.

Joint Tenancy vs. Tenancy in Common

Joint Tenancy vs. Tenancy in Common in Florida

Side-by-Side Comparison

Investment Property

Court Determination

Related Terms

Barnes Walker Co-Ownership

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