Just by looking at the name, and perhaps knowing a few things about property law, you might think that “tenancy in severalty” has something to do with multiple owners. It is a misleading term—the “several” part of “severalty” has nothing to do with multiple owners, but instead refers to being separate.
What is tenancy in severalty?
Tenancy in severalty is an exclusive and separate right of possession or ownership, unshared with others (although the “person” for legal purposes that owns the property could be a corporation). Or in simpler terms, it is sole ownership of a property.
The kind of ownership interest you have in a property is important, especially when it comes to estate planning implications. So here are some things you should know about tenancy in severalty.
How is tenancy in severalty different from joint tenancy or tenancy in common?
The big difference between tenancy in severalty and either joint tenancy or tenancy in common is that there is only one owner with tenancy in severalty. With joint tenancy or tenancy in common, there are multiple owners, and each type follows different rules about what happens to the property or the property interest when one owner dies.
With tenancy in severalty, after the death of the owner, the property will be conveyed according to the last will and testament or in accordance to any trust that may have been established.
Is it possible to convert a property interest from tenancy in severalty to joint tenancy?
Yes, it is, and it is easier to do it now than it was in the past. Now if a single owner wants to create a joint tenancy from a tenancy in severalty, they can do so by deeding the property to themselves and the other person(s) as joint tenants.
What about the other way around? Can a joint tenancy or tenancy in common become a tenancy in severalty?
Yes, it can. Either a joint tenancy or tenancy in common can become a tenancy in severalty if all property interests are deeded or sold to a single owner. A joint tenancy also becomes a tenancy in severalty if the other owner or owners die, leaving one surviving owner. The property will then be owned by the surviving owner as a tenancy in severalty — they do not share the property ownership or interest with anyone else.
A joint tenancy or a tenancy in common can also be terminated by bringing a partition action, but this will not always result in a tenancy in severalty for the individual owners. If possible, the property can be divided or partitioned among the owners, but if it is not possible, the property would be sold and proceeds divided among the owners.
Benefits of tenancy in severalty
Owning property as a tenancy in severalty may not be the right fit for every situation, but there are some advantages. To start off with, owning property as tenancy in severalty gives you complete control over the property. As the owner of a tenancy in severalty property, you have the right to sell, lease, transfer ownership by gift, mortgage, or include in your last will and testament. This simplifies things with regards to estate planning in a lot of ways. It is not as difficult to figure out inheritances. property portions, etc.
The most common scenario for owning property in severalty is if you are single. It is also possible to own a property as a tenancy in severalty if you owned it prior to getting married, or if you specifically elect to buy property as a tenancy in severalty while you are married (this varies somewhat by state).
But when it comes to estate planning, you may want to consider putting your property in a trust rather than just holding it as a tenancy in severalty in your own name.
Disadvantages of tenancy in severalty
If you have a spouse or partner who you hope will keep your property if you die before they do, then owning property as a tenancy in severalty may not be a wise estate planning decision—and in most states, you would have to go out of your way to buy a property as a tenancy in severalty if you are married.
Just like owning a property as tenants in common, there are no rights of survivorship for a property held as tenancy in severalty. When the sole owner dies, the property will have to pass through probate before being conveyed to any heirs.
If you do not have a spouse or partner who you would like the property to go to, but you have children or others that you intend to convey your property to, creating a trust fund (and having the property put in the name of the trust) may be a better option than just having the property in your own name.
Make a plan
Regardless of whether your property is tenancy in severalty, joint tenancy, tenancy in common, or tenancy by the entirety, getting an estate plan is important so that your property and assets get distributed the way you like when the time comes. If you start now, it gets easier to make necessary changes and adjustments later.