Sunday, December 28, 2014

Cohabitation and Real Estate (a primer for gay and straight non-married couples who own or want to buy Real Estate)

          In Florida, there are three recognized states of real property ownership. First is Tenants in Common in which each party owns a distinct interest of the real estate, generally 50-50 if equally shared but ownership can be in any percentage or multiple percentages if there are more than two owners.  If the deed is silent on the percentage of ownership, the shares are always deemed as equal. Upon the death of anyone owner, the interest of that deceased owner passes to that owner’s heirs at law. 

          The second estate is called Joint Tenancy, in which each owner owns the entire estate together and is distinct from Tenants in Common. If properly created, the interest of a deceased owner passes to the surviving joint tenant.  In Florida, because a simple joint tenancy is deemed to create a tenants in common relationship it is crucial that the deed state “joint tenants with full rights of survivorship and not tenants in common” to make sure the intent of the parties at the time of creating the estate is met.  Creditors of one of the joint tenants can lien and attach the joint tenant’s ownership interest, and upon foreclosure the purchaser of the property at the foreclosure sale becomes a tenant in common with the other owner, breaking the joint tenancy.

          The third estate is called Tenants by the Entireties and is reserved to married couples in the state of Florida.   In addition to having a survivorship benefit like a joint tenancy, the Tenants by the Entireties estate also prevents the creditors of one owner from reaching the interest held by the other owner.

          Under current Florida law, gay marriage is not recognized, and therefore gay couples who are legally married in other states cannot take advantage of this type of estate.  At the beginning of next year, the legal stay currently in effect regarding gay marriage will expire and it is possible that marriage certificates will be issued to gay couples while the case challenging the Florida constitutional prohibition on gay marriage is appealed. It would appear that if a gay couple obtains a marriage certificate then they will also be eligible to hold real property as Tenants by the Entireties.

          Under Florida real property law simply stating “husband-and-wife” or “his/her spouse” after the grantee’s name in any deed creates the Tenants by the Entireties estate.  No case has addressed whether stating “husband and husband” or “wife and wife” will be sufficient to create the desired estate. Therefore it is recommended the any deeds delivered to a gay married couple state with specificity the intent to create the Tenants by the Entireties estate. In addition, due to the uncertainty of the law, I would recommend also adding the following to any deed created while the gay marriage ban is appealed: “In the event it is determined that the Florida constitutional ban on gay marriage is constitutional, and the marital status of the grantees hereunder is voided, is the intent of the parties to create a joint tenancy with full rights of survivorship and not tenants in common.”  Otherwise, if the estate is not created properly, the estate would revert to Tenants in Common which would not effectuate the right of survivorship that most couples desire.

          Please also note that to create joint tenant estate or the tenant by the entireties estate certain elements must exist at the time of the conveyance as follows:

          1.       The owners must acquire the property at the same time;

          2.       The owners must have the same title to the property;

          3.       The owners must have an equal share in the property; and

          4.       The owners must have equal right to possession of the property.

          Therefore, even if a gay couple currently owns Florida property jointly with their significant other, or were married in another state, the fact that the ban on gay marriage may become unconstitutional does not automatically create the Tenants by the Entireties estate. This also applies to couples who acquired property together before marriage and then thereafter became married, or who, prior to marriage, only held title in one of the spouse’s names.

          In order to rectify the situation, it will be necessary for the owners to reconvey the property to themselves with the proper vesting language.  For example, if Mary and Jane Smith acquired property in 2005 as joint tenants with right of survivorship, and legally become married in Florida after January 2015 they would have to execute a new deed to themselves conveying the property and asserting the creation of the Tenants by the Entireties estate. If only Mary Smith owned the property prior to the legal marriage, she would have to convey the property to both herself and Jane Smith to create the estate, and, if the property was there homestead, Jane Smith would have to join in the deed as the spouse of Mary Smith to clear her Homestead interest.

          Many unmarried couples whether gay or not, who later become married, will find out the hard way that that deed which conveyed title to their property did not result in the survivor owning the property after their co-owners demise, but instead allowed the heirs of the deceased spouse to inherit. If you own property with another person which was acquired before marriage, you should take action to ensure that your interests are protected and that your intent to provide for survivorship is legally enacted.


Michael J Posner, Esq., is a partner in Ward Damon a mid-sized real estate and business oriented law firm serving all of South Florida, with offices in Palm Beach County.  They specialize in real estate and can assist owners in drafting deeds and trusts to insure proper transfer of assets.  They can be reached at 561.594.1452, or at mjposner@warddamon.com

36 comments:

  1. Fabulous. I would like to stay here for some time. It reminded me of Luxury Arizona Real Estate. Housing market in Arizona is in demand most because of beautiful houses. Can I buy a beautiful house there?

    ReplyDelete
  2. Thanks for the breakdown. It's a confusing situation, and the constantly-changing laws can make it even harder to work with. You're not technically required to have real estate lawyer when buying a home in my state, but it certainly helps with questions like these. It's hard to figure it out alone. | http://oakvillerealestatelaw.com

    ReplyDelete
  3. The Best Orlando, FL DUI Defense Attorney
    I was on rummage around for the sites related to provide good information, so I came up to your site.

    ReplyDelete
  4. Tyler Fair - Lake Tahoe Probate Lawyer

    I attach importance to reading this post that could make the people think. Furthermore, thanks for allowing me to comment!

    ReplyDelete
  5. Vacation Home For Rent is really one of the amazing place for rent in Florida . Best Accommodation, Affordable price,

    ReplyDelete
  6. I have been looking into real estate for my home. There have been a lot of options to choose from. I hope that I will be able to find something soon. There are a lot of places to look into. http://www.thetodayteam.com/page/1180289/AreaInformation/coquitlam

    ReplyDelete
  7. Well spoken baby. I have got to explore more on this issue as this is really essential content….
    https://www.wepaythemost.co.uk/

    ReplyDelete
  8. I never ever saw such blogs and the knowledge you have given that is accurately to the point and in simple wording, I like it!
    north hutchinson island real estate

    ReplyDelete
  9. Thank you I am glad about the encouragement! I love your site, you post outstanding.

    Generic and brand please

    ReplyDelete
  10. Cool blog site friend I'm about to suggest this to all my listing contacts.
    Terry Paranych Real Estate Team

    ReplyDelete
  11. Remarkable blog! I have no words to praise, it has really allured me.
    Poway homes for sale

    ReplyDelete
  12. SpainForSale.Properties isan Exclusive Real Estate Agency offeringLuxurious Properties For Sale and Rentonthe Costa del Sol, such as: Luxury VILLAS FOR SALE LA QUINTA

    ReplyDelete
  13. There are lots of things you should know before you decide to invest in a dailygram.com There are few concepts and recipes for a good and success on real estate investment.

    ReplyDelete
  14. It is worth mentioning that the house uses geothermal energy, which powers the underfloor heating.

    Situated within a gated and secure community of ten houses, spanning on the quiet grounds close to the natural and protected area of Marbella, this spacious villa enjoys beautiful views over the Mediterranean Coast and the mountains.
    The top level houses three bedrooms, one with a sitting area with southeast orientation, two with bathroom ensuite while the third one has a shower room ensuite. There are two open terraces with attractive sea views.
    The upper floor hosts a large living room with dining area, a fitted kitchen with central island and exit to the open private terrace with table ideal for breakfast. There is an extra bedroom suite on this level. All the rooms offer spectacular sea views of the Mediterranean coast, African Atlas and Gibraltar.
    In the semi-basement there are a wine cellar, a bar area, a recreational area with a fireplace, a snooker room, an equipped gym, an utility room, a bedroom with a shower room ensuite and a garage for two cars.
    Outside there is a tiled pool area with a thatched pool pavillion, and a heated swimming pool.
    The property is equipped with underfloor heating throughout, electric blinds, air conditioning and five security cameras.

    Contemporary style, original layout and open spaces with sea views highlight this extraordinary family house with south west orientation situated within the well known urbanization of Rocío de Nagüeles in the heart of the Golden Mile with easy access to the main road which takes you to Marbella centre and the nearest sandy beach.
    SpainForSale.Properties is an Exclusive Real Estate Agency offering Luxurious Properties For Sale and Rent on the Costa del Sol, such as: Luxury VILLAS FOR SALE IN SIERRA BLANCA SpainForSale.Properties is considered one of the most trusted Exclusive Real Estate Agencies in Marbella, Costa del Sol and other “Prime Locations” in Spain. Live on the Costa del Sol and Enjoy a Luxurious lifestyle in one of the most beautiful places of the World. Luxury Properties For Sale in Prime locations of the Costa del Sol: Mijas, Marbella, Benahavis, Estepona ….
    #LuxuryRealEstateMarbella #LuxuryPropertiesMarbella #Investment #PropertySpecialist #Immobilienmakle #العقارات #недвижимость #Fastigheter #Mäklare #ForSaleMarbella @SpainForSale.Properties
    @SpainForSale.Properties #Marbella #Costadelsol #PuertoBanus #VillaForsaleinMarbella #VillaForSaleMarbella #RentalsMarbella #ApartmentsForsaleinMarbella #PlotForSaleinMarbella #CostadelGolf

    ReplyDelete
  15. Stunning apartment with superb panoramic sea views and enormous terrace with private pool within this Mediterranean-style complex.
    This south-facing property enjoys lots of natural light, and comprises: entrance hall with cloak room and guest toilet; living/dining room with access to the terrace; kitchen with access to a patio and storage room; 2 bedrooms (one is currently used as a dressing room) with separate bathroom and en-suite master bedroom. All bedrooms have access to the terrace. The community offers four large pools, mature gardens, security and communal parking.
    Frontline beach duplex apartment in the luxurious development Laguna de Banus. With 4 double bedrooms and a 2nd living area/ TV room that can easily be converted ino a very luxurious 5th large bedroom, this apartment truly is more like a villa than apartment. Boasting a very spacious living room with cream marble floors, leading to ample terrace from which to enjoy the views across the landscaped tropical gardens and straight out across the Mediterranean.
    Enormous terrace of 215 m2 enjoying breathtaking sea views, with several seating and dining areas; private pool. Private garage space.
    The complex is fully gated and has night time security. Only a 7 minutes' drive to Puerto Banús and Marbella centre!
    SpainForSale.Properties is an Exclusive Real Estate Agency offering Luxurious Properties For Sale and Rent on the Costa del Sol, such as: Luxury APARTMENTS FOR SALE MARBELLA SpainForSale.Properties is considered one of the most trusted Exclusive Real Estate Agencies in Marbella, Costa del Sol and other “Prime Locations” in Spain. Live on the Costa del Sol and Enjoy a Luxurious lifestyle in one of the most beautiful places of the World. Luxury Properties For Sale in Prime locations of the Costa del Sol: Mijas, Marbella, Benahavis, Estepona ….
    #LuxuryRealEstateMarbella #LuxuryPropertiesMarbella #Investment #PropertySpecialist #Immobilienmakle #العقارات #недвижимость #Fastigheter #Mäklare #ForSaleMarbella @SpainForSale.Properties
    @SpainForSale.Properties #Marbella #Costadelsol #PuertoBanus #VillaForsaleinMarbella #VillaForSaleMarbella #RentalsMarbella

    ReplyDelete
  16. The vacation delivers on offer are : believed a selection of some of the most selected and additionally budget-friendly global. Any of these lodgings tend to be very used along units may accented by means of pretty shoreline supplying crystal-clear turbulent waters, concurrent with the Ocean. hotels packages how much is solidworks 2017

    ReplyDelete
  17. Technology refers to the collection of tools that make it easier to use, create, manage and exchange information. In the earlier times, the use of tools by human beings was for the process of discovery and evolution. Tools remained the same for a long time in the earlier part of the history of mankind but it was also the complex human behaviors and tools of this era that modern language began as believed by many archeologists. BuyCheapCad

    ReplyDelete
  18. Thank you for a fantastic in addition to informative write-up We genuinely value all the effort that went into the producing. piermont grand location

    ReplyDelete
  19. Thankyou for helping out, wonderful info . 먹튀

    ReplyDelete
  20. Thank you for sharing with us, I conceive this website genuinely stands out : D. 먹튀검증업체

    ReplyDelete
  21. You lost me, friend. Get real, I imagine I get what youre saying. I am aware what you’re saying, nevertheless, you just appear to have forgotten that might be other sorts of folks from the world who view this challenge for which it happens to be and might perhaps not go along with you. You might be turning away much individuals who had been lovers of this website. 먹튀

    ReplyDelete
  22. I went over this site and I believe you have a lot of superb information, saved to bookmarks (:. 토토사이트검증

    ReplyDelete
  23. Jason Sudeikis’s character Kurt is a hard working man who has a very nice boss, whose tragic incident leaves the company in the hands of his bullying, cocaine-addicted son, played by Colin Farrell. 먹튀

    ReplyDelete
  24. internet money is always good if you know how to earn them. earning it is another story though** Mega888 apk download

    ReplyDelete
  25. gold jewelry bracelets are a bit pricey but they last longer and are very durable too- 918kiss xe88 android

    ReplyDelete
  26. I believe this site holds very good pent subject material posts . 918kiss kiss918 apk download

    ReplyDelete
  27. The greatest tribute to Roy’s skill and a sign of his attention to the human side of things is that he gets her to the wedding, after a few car explosions and chases and dozens of dead bodies. 파워볼사이트

    ReplyDelete
  28. I am glad that I found this website , exactly the right information that I was searching for! . 918kiss

    ReplyDelete
  29. You got a very good website, Gladiola I discovered it through yahoo. 먹튀검증커뮤니티

    ReplyDelete
  30. 귀하의 블로그가 너무 놀랍습니다. 나는 내가보고있는 것을 쉽게 발견했다. 또한 콘텐츠 품질이 굉장합니다. 넛지 주셔서 감사합니다! 먹튀검증

    ReplyDelete
  31. The media is currently full of real estate 'doom and gloom' - real estate repossessions and arrears are up and real estate prices are down ... its almost as if the 'sky is about to fall'! This situation has seen many real estate developers, and property investors generally, leave the market - and for those thinking of starting out in real estate development, these are scary times indeed. پروژه ستین

    ReplyDelete
  32. I simply want to say I am just newbie to blogging and honestly savored your web page.
    먹튀검증

    ReplyDelete
  33. The media is currently full of real estate 'doom and gloom' - real estate repossessions and arrears are up and real estate prices are down ... its almost as if the 'sky is about to fall'! This situation has seen many real estate developers, and property investors generally, leave the market - and for those thinking of starting out in real estate development, these are scary times indeed. 港区の賃貸なら

    ReplyDelete
  34. This article is just the basics for getting started in real estate investing. This is not a how to article but an article that gives you some information about things to do to get started. Everything in this article is tools that can be applied to helping anyone get started in real estate investing. Rent Ajman one Tower

    ReplyDelete
  35. Although serious supply-demand imbalances have continued to plague real estate markets into the 2000s in many areas, the mobility of capital in current sophisticated financial markets is encouraging to real estate developers. The loss of tax-shelter markets drained a significant amount of capital from real estate and, in the short run, had a devastating effect on segments of the industry. However, most experts agree that many of those driven from real estate development and the real estate finance business were unprepared and ill-suited as investors. In the long run, a return to real estate development that is grounded in the basics of economics, real demand, and real profits will benefit the industry. fha loan limits clark county nv

    ReplyDelete
  36. So, you want to start a plumbing business. This could be a terrific decision, or, it could be the worst idea ever. Starting a plumbing business, or any business really, involves a certain amount of structured thinking to put everything in place, and making sure that you have thought of everything. account bookkeeping

    ReplyDelete