Love Is In the Air In Deed – Legal Rights When Purchasing Property As An Unmarried Couple

Valentine's Day will soon be upon us, when everyone's fancy will turn to -- real estate ownership issues? Well, of course! It seems more and more couples (as in unwed couples) are choosing to put off marriage, but not the purchase of a love nest. As the old adage goes, there's nothing certain in life except for death and taxes. In many instances, love is not forever but regret can be. To avoid unnecessary regret, or unnecessary additional pain that often accompanies a breakup, unwed couples who purchase real estate together should consider what happens to "home sweet home" if the relationship sours or, worse, one of the co-owners suffers an early demise.

The first consideration is how title to the property is to be held. Unless the manner in which the parties are taking title is noted on the deed (other than husband-and-wife or same-sex partners in a civil union), the presumption is that they are taking ownership as tenants in common. In that instance, the lovebirds would each own a 50% undivided interest of the property. Either owner could, if he or she chose to do so, transfer his or her interest to someone else without the consent of or notice to the other cotenant. A tenant in common may also mortgage his or her undivided interest. Moreover, if some tragedy were to befall one of the owners, his or her share of the property would go to the deceased's heirs. Great. Now you own the property with your significant other's parents or oddball siblings. That can be awkward if not planned for or considered as a possibility in the first place.

A more appropriate form of ownership where the unmarried couple wants their share of the property to go to their significant other in the event of death is that of joint tenancy. This is a type of ownership where each party owns an undivided interest in the whole. The significant difference between "joint tenancy" and "tenants-in-common" is that of survivorship. That is, if one party happens to leave this mortal coil prematurely, then the survivor will receive the entire estate. In order to create a joint tenancy the deed must specify that the grantees are to hold title as joint tenants. The downside is that a joint tenant may still transfer his or her interest to a third party...which breaks the joint tenancy and creates a tenancy in common as described above.

In either of the above situations, the parties may wish to consider what happens if the relationship terminates, and then address those concerns in a separate agreement.

If the couple decides to get married, or form a civil union in the case of same-sex partners, then the property may be held as tenants by the entirety. Under that situation, neither party may transfer their interest in the property without the consent of the other party. Plus, upon the death of either spouse, the surviving spouse will be deemed to have owned the whole of all rights under the original deed. These are significant benefits of owning property as tenants by the entirety, along with other benefits the limited space in this blog precludes me from going into.

Suffice it to say that purchasing property as a couple carries with it significant rights and responsibilities, starting with the manner in which title to the property is held.

For more information, please contact Tim McKeown at tpmckeown@nmmlaw.com