REAL ESTATE FAQs

Three of the common types of joint ownership known as tenancies tenants in common, joint tenants and tenants by the entirety. All are created in the deed giving you title to the property as follows:

Tenants in Common: The law presumes tenants in common unless the deed you receive specifies otherwise. If one owner dies the property passes to his heirs, not the other property owners. If there is a Will, it controls. Lacking a Will, the Virginia Code provides rules for intestate succession. Persons who are not married or related usually use tenants in common.

There is no creditor or judgement protection for tenants in common. Liens and judgements against only one of the owners can attach to the defendant’s portion of the property. This can eventually lead to the entire property being sold to satisfy the lien or judgement.

A tenant in common may sell his interest without approval of the other owner. Unless specified otherwise, the law assumes you meant to have equal ownership. In your situation each person would be presumed to have a 25% interest. However you can chose to have a different percentage of ownership. For example you can hold property as follows: Owner 1 has a 10% interest, Owner 2 has a 20% interest, Owner 3 has a 30% and Owner 4 40% interest.

Tenants by the Entirety Tenancy by the entirety is only possible when the joint owners are husband and wife. Tenants by the entirety provides for a common law right of survivorship. The property goes automatically to the surviving spouse. No Will, probate or other legal action is necessary. One spouse cannot use a Will to leave an interest to someone else.

One owner may not convey an interest without the other. And a creditor with a judgement against one of the owners cannot collect it from entirety property. If there is a judgement against one spouse, the judgement does not attach to the property or the proceeds of sale, as long as they are also maintained in a tenancy by the entirety bank account.

Upon divorce, tenancy by the entirety automatically converts to tenants in common.

Joint Tenancy: Joint tenancy is similar to tenants by the entirety but the co-owners are not married. Joint tenancy includes the common law right of survivorship, provided it is set out in the deed. Upon death of a joint tenant, title remains in the surviving joint tenant without further action. You can’t leave joint tenancy property to someone else in your will.

There are some important differences. One owner may petition the court to divide the property or order its sale. A judgement creditor may also petition the court to divide the property and collect the judgement from one of the owner’s shares.

A deed is the written document which passes an interest, right or property from the maker or grantor.

The deed must be in writing, signed by the grantor, and contained a valid description of the real property that is begin transferred. For the transfer of property to occur, the deed must also be delivered and accepted.

Recording a deed in the land records for the county in which the property is located gives notice to everyone that you have an ownership interest in the property..

The transfer of real property must be in writing. While you almost always have to have a deed, another type of document is sometimes used. For example, in a divorce, a court order may transfer real estate from the couple to just one owner.

A Quitclaim Deed transfers whatever ownership interest the grantor has in the property. It makes no guarantees about the extent of the grantors ownership interests
A Warranty Deed transfers the grantor’s ownership interests in the property and includes warranties against all defects in title include those of the grantor’s predecessors.
A Special Warranty Deed is like a warranty deed, however the grantor makes no representation on behalf of his predecessors.

Title insurance refers to an insurance policy that is purchased from a title insurance company. Title companies will review the status of title to a piece of property and issue a “commitment” for issuing you a policy of title insurance. This commitment will give you the terms on which the title insurance company will issue insurance coverage to you or your lender. The commitment will also list exceptions and specific exclusions to their proposed insurance coverage. The exceptions raise issues that you and your attorney should review to determine if they can and should be deleted from the final title insurance policy (such as mechanics’ liens or mortgages placed on the property by your seller). As the names suggest, a “lender’s policy of title insurance” is issued for and protects a lender and an owner’s policy title insurance is issued for and protects property owners.
A title opinion is a memorandum issued by a lawyer after he or she reviews the Abstract of Title. A title opinion is often obtained by buyers instead of purchasing a title insurance policy. The title opinion will reference any issues or “defects” affecting the condition of title to the property and will set out any objections to title that the lawyer may identify. As with a title insurance policy, a lawyer’s title opinion may include standard exceptions or limitations to the scope of the opinion.
It is very important to keep in mind that both a title insurance policy and a lawyer’s title opinion relate to past transactions and issues affecting title, not future transactions.

Yes. The seller’s lawyer represents only the seller’s interests and what may be in the seller’s best interest may not be in yours as a buyer. The seller’s lawyer has no ethical or contractual obligation to protect your interests. Remember, you can negotiate all of the terms of a purchase agreement up until the time that both you and the seller have accepted the terms by signing the agreement. Your lawyer can advise you on whether the proposed terms are in your best interest and can suggest appropriate additions or modifications to better protect you.

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