How To Sell A Property In Joint Names

 

Co-owning property with others is a common practice. Whether it’s buying a house with your spouse, long term partner or friend, or purchasing an investment property with business partners, joint ownership of property between two or more parties (be they individuals or businesses) is ordinary and routine practice in real estate.

Owning a property in joint names enables all parties involved to share the financial burden of the sale price, along with the costs of any repairs, maintenance work, bills and unexpected costs. It enables individuals and investors to potentially diversify their assets among multiple properties instead of having all of their “eggs in one basket”.

But when it comes time to sell, joint ownership can complicate the process. If one of the party members doesn’t agree with the terms of the sale, it can cause a whole lot of stress and aggravation for everyone involved.

In this guide, we’ll examine the different types of joint ownership and the various scenarios they might be used in. We’ll also look at some of the practicalities of selling a property with multiple owners so that you’re armed with all the information you need to move forward.

Let’s dive in…

How you sell your joint-owned property will largely depend on the type of ownership arrangement you have. These arrangements can run the gambit from simple and straightforward, to complex and nuanced. They can also be as informal as a note written on a napkin and a firm handshake, or as formal as an official LLC operating and ownership agreement drafted by an attorney.

Types of Joint Ownership of Property

 

Joint Tenancy

A joint tenancy contract means that two or more people own undivided and equal shares of the property. Joint tenancy can be between any two people, whether they are married, cohabitating, family members, or perfect strangers.

Married couples do have an extra advantage when it comes to joint tenancy though; similar to joint tenancy with rights of survivorship (JTWROS), if one member of the married couple passes away, the other one inherits their share of the house without any tax ramifications.

But things get a little more complicated for unmarried couples, such as friends or partners who enter into a joint ownership contract. If one owner passes away, the value of the entire property becomes part of the deceased person’s estate. For the other surviving owner to reclaim their legal rights to the property, they must go through the probate process.

This clause can often catch people off guard and lead to complex legal problems, which is why this type of ownership is best suited to married couples or couples who have written each other into their wills.

Joint Tenancy With Rights of Survivorship (JTWROS)

Joint tenancy with rights of survivorship is another common form of co-ownership that is especially popular both married and unmarried couples.

Just like with regular joint tenancy, if one of the owners passes away, their share of the property is automatically transferred to the surviving owner. The difference with JTWROS is that couples don’t need to be married to enjoy this benefit.

One caveat of a JTWROS is that if an owner dies, they can’t give their share to an heir while the other co-owners are still alive. Instead, their share goes to the surviving owner, no matter what the wishes of the deceased were.

Tenancy in Common

Tenants in common agreements can involve two or more people, however, in this type of ownership, the shares of the property can be divided up into varying percentages. For example, if two friends buy a property together, one might own 70% and the other would own 30%.

With tenancy in common ownership, any co-owner has the right to pass on their share of the property through proper legal processes, and when a co-owner dies, their share goes to wherever is indicated in their will, rather than to the remaining property owners.

Community Property

There are currently only 10 out of the 50 states that have community property laws;

Alaska, Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin.

Community property ownership applies to married couples when the property is considered part of the community of their marriage and is equally owned by both parties.

If one of the spouses passes away, there is no obligation for them to leave their half of the property to the remaining spouse. Instead, they have the freedom to pass it on to an heir of their choice.

Multiple Owner Situations

 

Below we’ve detailed some of the most common co-ownership situations and the types of joint ownerships best suited to them.

You buy a property with your spouse

The National Association of Realtors reported that in 2019, 63% of homebuyers were married couples, making them the biggest demographic of joint homeownership in the USA.

The most common type of property ownership for spouses is joint tenancy with the right of survivorship That’s because if one member of the couple passes on, the entire property is automatically passed on to the surviving partner.

This solves the problem of hefty tax bills for the remaining partner but comes with its disadvantages in some situations too. In a joint tenancy with the right of survivorship, there is no option for either party to leave their share of the property to an heir, no matter what is written in their will, the property will always go to the surviving partner.

You buy a property with your significant other or friend

The most common type of ownership terms for unmarried couples and friends who buy property together is a tenancy in common agreement. If a co-owner passes away, this type of agreement means that their share of the property is passed down to whoever is specified in their will. Although this could be the surviving partner (especially in the case of unmarried couples), the deceased person’s share does not automatically pass to the remaining owner.

This clause is especially beneficial for friends who buy property together, who may have heirs they wish to leave their share to. Having a tenancy in common agreement also makes it possible to own property in unequal shares. For example, one party can own 60% and the other owns 40%.

Even if you own the minority share, you still have as much right to live in the entire property as the other party does. This is especially beneficial for people living in expensive areas who may otherwise not be able to afford to buy a home there.

You buy a property with your siblings

Just like purchasing a property with your unmarried partner or friend, the most straightforward type of ownership for siblings who own property together is a tenancy in common agreement.

This allows each sibling to own either an equal or an unequal stake. If, for example, there are three siblings, rather than a straight 33.33% split, there is the option for two siblings to take a 25% stake and the other could hold a 50% stake.

While any party can sell off their individual stake at any time, when it comes to deciding to sell the property as a whole, all the co-tenants much agree on how to move forward.

Disagreements can lead to a stalemate situation or can ultimately end up in lengthy court battles.

You purchased an investment property

If you are entering into co-ownership of an investment property, you’ll also want to sign a tenant in common agreement.

This type of agreement not only allows each party to own varying percentages of the property, but it’s also possible to add new owners over time and readjust how the shares are divided up. It’s an easy way for new investors to enter in, as well as for existing investors to sell up their individual shares.

One potential downside of a tenant in common agreement is that each party can choose to leave their share to whomever they choose. That means that if one co-owner passes on, they could leave their share to an unvetted, uncooperative new partner, making negotiations and decision making difficult.

You inherited a property

Finally, if you inherit a share of joint ownership property, it will most likely also be under a tenancy in common agreement. This allows each heir to leave their share to whomever they please, rather than automatically passing on to the surviving co-owners.

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Should You Hire a Real Estate Agent?

 

If you decide to put your joint-owned property on the market, you have several options at your disposal. Although we cover these options more in-depth in other guides, this will give you a brief introduction as to which you may want to discuss pursuing.

1. Traditional Sale / Real Estate Agent

• Complete “done for you” full service from listing to sale
• Commission rates typically range between 4-8%
• Largely hands off
• Listing, marketing, staging, hosting open houses and showings, fielding offers, negotiations and closing assistance are all generally part of the deal

2. FSBO – For Sale By Owner 

• Zero commission to pay
• Seller(s) are responsible for every aspect of the sale
• Very hands-on
• No MLS listing
• Time/resource intensive
• Often less visibility and marketability

3. Discount Agent

• Low commission rate (often 1-3% or flat rate)
• Still high level of services
• MLS listing included
• Marketing and showing the property, as well as other responsibilities might be shared between the agent and the seller(s)

4. Flat Fee MLS

• Seller(s) are responsible for every aspect of the sale
• Includes a flat fee listing in the Multiple Listing Service
• Often a great “add on” to the FSBO route

However, unlike selling a house on your own, the sale of a jointly owned property may have to be handled more sensitively. For example, if you use a real estate agent, make sure to choose a neutral agent, rather than someone recommended by a friend or family member. That way if disagreements do arise, they can remain objective and unbiased. By picking an agent with no personal connection to any of the co-owners, there is no room for finger-pointing if things don’t go to plan.

Should You Hire an Attorney?

 

When you’re selling a co-owned property with someone other than your spouse or partner, it’s wise for each party to hire their own attorney to make sure the process runs smoothly and fairly.  A good attorney will ensure that each party’s interests are equally represented and will fight in your corner for your voice to be heard.

In fact, some states actually mandate the presence of an attorney at closing. Those that currently require one by law include:

• Alabama
• Connecticut
• Delaware
• District of Columbia
• Florida
• Georgia
• Kansas
• Kentucky
• Maine
• Maryland
• Massachusetts
• Mississippi
• New Hampshire
• New Jersey
• New York
• North Dakota
• Pennsylvania
• Rhode Island
• South Carolina
• Vermont
• Virginia
• West Virginia

*This list is subject to change. Always review your state and local laws before proceeding.

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What Happens When One Party Wants to Sell and the Other Does Not?

 

This is one of the toughest potential challenges of co-owning a property. Every party must give their permission before the property can be sold, which can pose a major problem if not everyone agrees.

Disputes Can Arise Including:

• Whether or not to sell at all
• The time to sell
• Terms of the deal
• Sales price
• And more…

In this situation, you’re faced with a couple of choices. You could offer to buy out the other owner’s shares and take full ownership of the property yourself, or you could also attempt to sell on your own share.

Failing this, your next option will be to take the matter to court to try to attempt to force a sale.

How Do The Selling Costs Get Split?

 

No matter what type of ownership agreement you have, when you share ownership of a property each party, each owner is typically expected to pay their respective share of the selling costs.

If you are in a joint tenancy or a joint tenancy with rights of survivorship (JTWROS) with one other person, this will be 50%. If you are in a tenant in common contract, then this could be split differently. For example, if you own 25% of a property, you will only be required to pay 25% of the selling costs.

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How Does the Profit Get Split?

 

Once all closing costs, taxes, and fees are paid, the remaining profits will be split according to the percentage of ownership. Just like with the selling costs, if you own just 25% of a property, you will receive a 25% share of the profits unless previously agreed upon otherwise in a legally binding agreement.

What Happens If All The Owners Cannot Agree?

 

Unfortunately, a common consequence of owning a property in joint names is that all parties are unable to agree. If one party wants to sell, but on or more others don’t, there are several avenues to explore as resolutions.

Buy Out Offer

As previously mentioned, an offer to “buy out” the ownership share of the party not wishing to sell is often the easiest and simplest path forward. However, if the partner is unwilling to sell based on your terms, you may need to explore the options below.

Arbitration

Unlike court, arbitration is a private process of dispute resolution. With arbitration, both parties agree that a selected individual or group of individuals will make the final determination on the dispute after both hearing arguments and reviewing evidence from each party. Arbitration differs from mediation in that the arbitrator is granted the authority to make a determining decision about the dispute.

Mediation

With the assistance, guidance and “mediation” of a trained impartial third party, this process seeks to help both parties come to a mutually agreeable middle ground. The mediator may meet with both parties individually and together, working patiently with both and leveraging a number of negotiation techniques to facilitate progress.

Court

Going through courts can be a long, painful, and expensive process, that is best avoided if it can be. We don’t recommend this path unless it truly is your only option.

Final Thoughts on Selling a Property in Joint Names

If you’re considering entering into joint property ownership, make sure you understand the different types of contracts available and choose the one which protects all parties’ interests as much as possible. Always plan for the future with selling in mind, and include any terms and clauses that make the resolution of any disputes expeditious and affordable.

When it comes to selling your co-owned property, make sure you understand your rights and responsibilities as a co-owner. Selling a property in joint names can be a complex matter and you might need to seek the help of an experienced attorney who can help to guide you through the process. A real estate attorney is often the best fit to help you navigate these situations and can help you plan ahead for any stumbling blocks you may encounter as a co-owner.