This article explains several types of Real Estate Ownership in Florida and how each can affect your plans for asset protection and inheritance. Republished here with permission from Hunt Realty Group
Disclaimer: This article is not legal advice. It is written as a starting point for you to decide which information you may want to investigate further. While it’s great to understand many of your options before consulting with an Attorney, it is usually a wise decision to seek legal advice. The author of this article is a Real Estate Broker, not an attorney.
Types of Ownership and Protections in Florida
- RIGHT OF SURVIVORSHIP IN FLORIDA
- TENANCY BY THE ENTIRETY
- CREDITOR PROTECTION FOR OUT OF STATE OWNERS
- JOINT TENANTS WITH RIGHT OF SURVIVORSHIP
- JOINT TENANCY and the right to sell your interest
- DEBT AVOIDANCE
- TENANTS IN COMMON
- SEVERALTY - Single/Sole Ownership
- SEVERALTY while married / Florida
- PARTITION LAWSUIT AND OTHER INFO
- RIGHT OF FIRST REFUSAL
(DO IT YOURSELF WILLS FOLLOW)
- LIVING TRUST
- LADY BIRD DEED
aka an Enhanced Life Estate Deed
- LIFE ESTATE and
- Life Estate Pur Autre Vie
Based on a 3rd person's life
- Life Estate and the Step Up Basis
- CORPORATIONS, LLC, PARTNERSHIPS
- HOMESTEAD CREDITOR EXEMPTION IN FLORIDA
- HOMESTEAD EXEMPTION and Tenancy by its Entirety, Divorce and Creditor Protection
- Homestead Exemption and the risk of Debt
RE: Joint Tenancy, Tenants in Common
- EFFECTS TO THE HOMESTEAD EXEMPTION when Renting your property:
- EXCEPTIONS TO THE HOMESTEAD EXEMPTION
- Homestead Exemption After Death
- Property and Divorce in Florida
- Real Estate Ownership Rights
SELECTING TITLE – You have choices:
When you’re buying property with others, you'll need to select a form of property ownership to be stated in the deed. One of your biggest decisions as a property owner will be the disposition of Real Estate in the case of death and protection from creditors.
RIGHT OF SURVIVORSHIP IN FLORIDA:
The right of survivorship is a powerful legal privilege. If it is your intent for the property to automatically transfer to your co-owners, you need to include the Right of Survivorship clause. Without it, Real Estate can end out in probate hell, regardless of what a Will reads.
Two common types of ownership in which you can have the Right of Survivorship are Tenancy by the Entirety (for married couples only), and Joint Tenants with the right of survivorship.
Probate is a process through the court for distributing assets after paying off creditors and other expenses for the deceased. The process can take a few months or a few years. You can typically avoid Probate with the Right of Survivorship. It creates an automatic transfer of Title to the surviving owner. The primary benefit for non-married co-owners is that you avoid the probate process. For married couples, it offers another level of protection from some creditors which is explained elsewhere in this article.
PROBATE and Pitfalls in Real Estate:
Probate can be a big problem for some survivors. Let’s say that one owner is the primary earner and there’s a sizeable mortgage payment each month or annual tax bill. If the survivor needs to sell because he/she can’t afford the mortgage, taxes, or other property expenses, the risk of total loss is possible. If no Will exists, or if the Will fails to give the executor the power to sell the property, you can’t sell while the estate is in probate unless you get a court order approving the sale. That means more money coming out of the Estate for filing in court along with possible burdensome instructions from the court, and additional delays in your ability to sell. Mortgage and Tax payments will still need to be made. If not, as it pertains to the mortgage, the lender can foreclose. As it pertains to Tax, within guidelines not covered here, the taxing authority can also force a sale. A link to a good explanation from a Florida law firm on Probate appears at the end of this article.
TENANCY BY THE ENTIRETY in Florida:
Tenancy by the Entirety is reserved for married couples only. It offers asset protection from creditors as well as the Right of Survivorship benefit. In the event of a death of one of the spouses, the property automatically transfers to the surviving spouse. Before death, it’s an equal 50/50 ownership by two married people regardless of whether one contributes all or none of the funds. Neither spouse can disinherit the other or sell their 50% ownership of the property. This isn’t a choice. It’s 50/50. Neither spouse can sell, rent or incumber the property without both spouses signing off. In the event of death, there is no probate involved (Right of Survivorship benefit!)
TENANCY BY THE ENTIRETY - Married after the purchase:
In Florida, if you purchased a property before marriage, and you want the benefit of Tenancy by the Entirety, you will need to Deed the property to yourself and your spouse as a married couple. That’s because the marriage must come before the purchase.
Here’s what it looks like: Spouse 1 (you) Deeds the property to yourself and spouse 2 thereby creating a new record showing ownership (Title) as Tenancy by the Entirety. This can get complicated if there’s a mortgage, but you can speak to your lender to find out how you can cost-effectively handle the mortgage aspect.
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TENANCY BY THE ENTIRETY and Debt:
If one spouse racks up debt, judgment creditors can’t satisfy the debts by going after the property unless the judgment is against both spouses.
CREDITOR PROTECTION and Out-of-State owners:
In Florida, Tenancy by the Entirety protects real property (and tangible personal property located in Florida) even if the owners reside permanently outside of Florida. A non-resident can protect real estate they buy in Florida as Tenants by the Entirety and as Joint Tenants with the Right of Survivorship. The Author of this article is not an attorney. If creditor protection is your intent, speak with an attorney, but hire us to locate your property anywhere in Florida.
TENANCY BY THE ENTIRETY and Divorce:
Divorce between the spouses immediately changes ownership to Tenants in Common. The property would then be exposed to creditors of the spouse with debt. More on this later.
TENANCY BY THE ENTIRETY and the death of the debt free spouse:
On death of either spouse, the Tenants by the Entirety terminates since the property becomes solely owned by the surviving spouse. The asset protection from the Tenants by the Entireties ownership no longer exists. If the surviving spouse is the spouse with debt, creditors can and likely will pursue their rights. Also see HOMESTEAD EXEMPTION for other protection coverage in Florida – covered later in this article.
I don’t think I would want my kids getting married just for the creditor protection benefit! If your intent is protection from creditors, you need to speak with an attorney about estate planning issues as it pertains to law, as well as any other legal issues that only an attorney is licensed to explain, but hire us to locate your property anywhere in Florida.
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JOINT TENANTS WITH RIGHT OF SURVIVORSHIP:
Joint Tenants with right of survivorship is meant for 2 or more unmarried people who buy a property together at the same time with equal ownership (equal percentages), and with the intent that the property will automatically transfer to the surviving party, or parties in the case of more than 2 people. You must ask for the Deed to read Joint Tenants with the Right of Survivorship. On death, interest goes to the surviving owner(s), even if the deceased has a Will that states otherwise. The survivor will need to file an affidavit affirming that the Tenant has died, along with a death certificate. If you have a Will that’s in conflict, speak to an Attorney for the full scope of your rights.
JOINT TENANCY and the right to sell your interest:
Unlike the Tenancy by the Entirety, any Joint Tenant (co-owner) can sell their interest at anytime without needing your approval. You may be able to include a Right of First Refusal clause. This is covered in more details elsewhere in this article.
JOINT TENANCY and debt:
Debt by one owner can affect all owners. Joint Tenancy does not prevent a creditor from filing a lawsuit for unpaid debts. A judgment creditor can file a lien on the property or, become your future Tenant in Common. If that occurs, creditors can take additional actions which include filing a Partition Lawsuit to force a sale or selling their interest to a third party. However, if your property is eligible for Florida Homestead (covered in this article), your home may be exempt, and you can go forward with the Joint Tenancy with Right of Survivorship selection. Debt is another circumstance in which you should consult with an attorney to make sure you’re protected.
I was in a transaction in which the Title Holder Seller signed a document drawn up by his now ex-girlfriend that gave her a certain percentage ownership right in the property. They decided not to put her name on the Title because she had debt. The seller was the party that put 95% of the money into the house. His girlfriend contributed 5%. When it came time to sell, he didn’t want to give her any portion of the sale’s proceeds due to her failure to uphold other property agreements. As soon as the property was listed for sale, she filed her document with the court to put it on record.
As I explained to the Title Holder, and as expected, the document came up during the Title search. While the Seller may or may not have had legal grounds to fight his ex-girlfriend, her filing did delay closing and had the potential to cause the sale to cancel. He ultimately paid her more than he wanted and less than she wanted. If he dug in (he started to by the way), the dispute likely would have been a long drawn out legal battle in court. I got to know both of them because after they consulted attorney’s, I unintentionally because a message center between them (never gave advise as I am not an attorney). They were both truly nice people in their conversations with me. The point is, be cautious if you try to find ways around the debt issue. It can be risky, possibly legally problematic, and you won’t be able to select Joint Tenants with the Right of Survivorship.
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TENANTS IN COMMON:
Tenants in Common allows for Unequal Separate Ownership shares of the property. You can do whatever you want with your share of ownership. If you’re choosing Tenancy in Common, you should decide on ownership share percentages and include it in the Deed. If you don’t specify percentages, the property will be equally owned even if it wasn’t your intent. Let’s say you paid $300,000 and owner-2 put in $100,000. Without specifically putting the percentage ownership in the Deed, you would own the property equally. If you later sold for $400,000., both parties would receive proceeds of $200,000. If a dispute arises, you will likely have the expense of lawyers and court. You can avoid all the issues by including the ownership percentages in the Deed.
TENANTS IN COMMON and Undivided Interest:
Each owner has an undivided interest in the property. You can own 75% of the property, but if I own any percentage, I have just as much right to use the property as you do.
Any Tenant in Common co-owner (Joint Tenants as well), can sell their interest at any price without the permission of the other Tenants in Common. If you make a profit, it’s yours. If you lose money, it’s your loss. The new buyer gets the keys and can move right in. If you’re not the seller, you can come home to the surprise of a new roommate!
TENANTS IN COMMON and Co-ownership agreement:
It’s a good idea to draw up a co-ownership agreement before taking deed and title. A co-ownership agreement can help co-owners avoid potential conflict over use and future disposition of the property. If you decide to put it in writing, do yourself a favor and hire an Attorney. Just remember, you’re hiring us to help you buy your property!
When two or more people inherit property, they receive it as Tenants in Common.
SEVERALTY – Single / Sole ownership:
One person owns the property and can do as he or she wants within the rules of the City/Town/Community and law. The single owner can be an individual or entity such as a Corporation, LLC., Etc.
SEVERALTY while married in Florida:
If you are married and want to own the property as a single owner, your spouse, if agreeable, will have to sign a document surrendering any future claims to the property. If you’re married but don’t want to share the future value with your significant other, you may want to consider forming an LLC and buying the property through the LLC or other entity type. If you’re paying cash, it should be straight forward. If you need a mortgage, you should first speak with a Lender to find out what they will require to approve a mortgaged property to be held by the LLC. The loan to value ratio and interest will typically be higher.
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PARTITION LAWSUIT AND OTHER INFO:
You can end Joint Tenancy and Tenants in Common by suing the other party in an Action known as Partition. A link to an Attorney’s writing on this appears at the end of this article. You may have noticed a trend here. We provide strong research on the Sell and Buy side for Real Estate in Florida, and we’ll always put your best interests ahead of everything we do, and therefore, when it comes to Actions or writing legal non-standard agreements, we recommend hiring an Attorney.
RIGHT OF FIRST REFUSAL:
To potentially avoid conflict with co-owners, you can include a clause for Right of First Refusal which gives the other Tenants the right to purchase your ownership shares ahead of another buyer and which also gives you the right to buy theirs ahead of another buyer. You can set conditions for price in advance, such as basing price on an Appraisal or a Broker’s Price Opinion (BPO – we do this), and to be done at the time the sale is offered, or any other legal creative variation you choose. As with any legal document, you should consider having an attorney look over the agreement for legality and for the benefit of all co-owners.
If any of the Tenants in Common die, their interest in the property goes to whomever they Willed it to, or in the event of no Will, their closet living relative(s). Think Probate!
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To avoid a court from assiging an Administrator, you should have a Will in place which names an Executor who you want to carry out your wishes. If you don't want to hire an Attorney to create a Will, you can create your own Will using readily available programs. At a mnimum, it is wise to have at leaset a Will. Here are two that you may want to consider:
In Florida, a Living Trust holds assets that you transfer into a trust and you continue to control and use the assets during your lifetime. On your death, your assets are distributed to your beneficiaries. When you create a living trust in Florida you are the Grantor and the person who decides what gets put into the Trust and the Terms of the Trust. You select a trustee, which is often yourself, to manages the assets. You can select someone other than yourself. If you choose yourself, you also need a successor trustee to handle the trust after your death, or if you become unable to manage the Trust. Your attorney will counsel you on what Terms are valid to include in the trust. The trustee manages assets for your benefit in your lifetime, then distribute them to the people you name as beneficiaries after your death.
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LADY BIRD DEED (aka an Enhanced Life Estate Deed):
The original owner reserves the right to freely deal with the property without involving the beneficiary. The owner may change the beneficiary or undo the deed, all without the beneficiary’s consent. A Lady Bird deed contains a provision to the effect that the life estate is coupled with an unrestricted power to convey during the Grantor's lifetime (means you can sell your property.)
LIFE ESTATE and REMAINDER INTEREST:
You can take title (or more common, change title) to property in a manner that divides ownership into current and future interests. It must be properly done using a deed, trust or Will. A Life Estate transfers rights to the property to the Remainderman (beneficiaries) but not possession rights while the Life Tenant is alive.
Make sure to discuss risks with your attorney. Using joint ownership with rights of survivorship instead of a life estate as Tenants in Common should also be discussed. If the sequence of death is not as expected, your property can end out in the Probate of the Remainderman. It is possible that someone other than your intended will end out with ownership rights in your property. An attorney who came across the pitfalls of using a Life Estate wrote about it. A link to his explanation (a really important concept to understand) appears at the end of this article under Life Estate Pitfalls.
- Grantor is the Current Owner and is the person creating the deed
- Life Tenant is the person who is granted the Life Estate. The Grantor and the Life Tenant are often the same person. As an example, you grant yourself a Life Estate and make your kids the Remainderman-beneficiaries.
- The Remainderman (Beneficiary) is the person or persons who will own the property after the life tenant dies. On death of the Life Tenant, the life estate is terminated and passes to the remainderman.
By using a Life Estate, a person has present use and interest in the property and is entitled to all ordinary uses of the property until death. The owner of a Life Estate is called a Life Tenant. On death, the property is transferred to the beneficiary known as the remainderman.
Example: Parents grants themselves a Life Estate and names a child as a remainderman (beneficiary). When the parents die, the property transfers to the remainderman. Assuming the paperwork is done correctly, you avoid probate.
A Life Tenant has responsibilities such as paying taxes, mortgage, upkeep, etc. A life tenant can rent the property and benefit from the money received. While the life tenant is benefiting from the property by using it themselves or renting it, they are essentially caretakers of the property for the remainderman. The life tenant cannot sell, mortgage, damage, or make major alterations unless the remainderman signs-off in agreement to do so. However, the life Tenant can sell their interest in the property thereby creating a Life Estate Pur Autre Vie (based on 3rd person’s life - explained soon), unless there are restrictions preventing the sale.
Example: You are a Tenant in a Life Estate and you sell your interest as the Life Tenant to another person. That person is now a Life Tenant in a Life Estate Pur Autre Vie (explained next section). When the original Life Tenant dies, the Life Estate Pur Autre Vie ends.
An Estate Planning Attorney may recommend a Lady Bird Deed (aka an Enhanced Life Estate Deed), a Living Trust, or other restrictions available to control what can be done with the Life Estate. On your death, the life estate ends for the new life tenant and the property reverts to the Remainderman-Beneficiary.
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LIFE ESTATE PUR AUTRE VIE (based on a 3rd person’s life):
Characteristics are the same as a regular Life Estate, except that the Life Estate Pur Autre Vie exists until a designated 3rd person’s death. Example: Joe gives Mary (a caretaker for Joe’s brother Thomas), a life estate in a property for as long as Thomas is alive. If Thomas dies before Mary, the life estate reverts back to Joe or to another designated person.
LIFE ESTATE and the Step Up basis:
Let’s say that you bought a property for $300K and it increased in value to $400K. You would have a gain (capital gain) of $100K. With a Life Estate, on death heirs receive the property as a value of $400K and are not charged a capital gain tax on the $100K value increase. That is called the Stepped-Up Basis. The difference is whether heirs who sell an inherited asset will pay tax on the capital gains from the time the asset was originally purchased or from the time it was inherited.
CORPORATIONS, LLC, PARTNERSHIPS:
Property can be purchased through an entity. For home flippers looking to limit certain types of liability, and for other reasons, many properties are purchased through business entities.
Contrary to popular belief, buying through an entity will likely not shield your identity. There are some Attorneys who work between Florida and Nevada who can create an LLC loop to essentially make it difficult to identify the individual(s) who own the property in Florida. This approach can be a bit expensive and specialized. Finding an attorney who can properly do this could be a challenge. Remember the rule, you use attorneys to cover your bases and you hire Scott to handle your sales and purchase of real estate in Florida! Polisar.NET
HOMESTEAD CREDITOR EXEMPTION IN FLORIDA – asset protection
A creditor cannot lien or force the sale of a house to recover money that is registered as a homestead. You can invest significant money into your property, and it would be protected under the Florida Constitution. When all co-owners qualify for the homestead creditor exemption, the home will be exempt/shielded from creditor liens and forced sale.
Homestead property is defined as the home and attached land of an individual or family serving as the primary residence. Single family constructed homes, Condos, Mobile Homes, and Manufactured Homes are protected under the homestead exemption.
Only a natural person can qualify for a Homestead Exemption in Florida. A corporation or LLC does not qualify for the Homestead Exemption in Florida.
HOMESTEAD EXEMPTION IN FLORIDA – Qualifications:
Pursuant to the Florida Constitution, in order to qualify for the homestead creditor exemption, three conditions must be satisfied:
- Acreage limitation: 160 Acres
- Residency requirements: One Year before qualifying
- Must Occupy by January 1st for the year of the exemption and you must apply for the homestead exemption by March 1st.
If all three of these conditions are satisfied, creditors of the person claiming the Homestead Creditor Exemption will not be able to force a sale of or place a lien on the homestead property.
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HOMESTEAD EXEMPTION and Tenancy by its Entirety, Divorce and Creditor Protection:
Married couples are treated as one unit with each spouse having an undivided interest in the property. If either spouse qualifies for the Homestead Creditor Exemption, the property will be protected from the creditors of either spouse. If you get Divorced, your Tenancy by its Entirety changes to Tenants in Common. You should discuss your debt situation with your divorce attorney for guidance. See effect on Tenants in Common next.
HOMESTEAD EXEMPTION and Joint Tenancy, Tenants in Common and the risk of Debt:
If one of the co-owners does not qualify for the Homestead Exemption and creates debt, a Judgment Creditor can be awarded the Debtor’s interest in the property. If that happens, they can and likely will file for Partition and force a sale of the property.
If all co-owners qualify for the Homestead Exemption, the Homestead creates a complete shield.
If someone else owns part of the homestead property but does not live on the property, the homestead does not protect that co-owner. Their creditors can potentially force the sale of the property. See Homestead Exemption.
HOMESTEAD EXEMPTION and Renting your property:
The Homestead Exemption will be forfeited if you rent your house for more than 30-Days (196.061 Rental of homestead to constitute abandonment). The provisions of this section shall not apply to a member of the Armed Forces of the United States whose service in such forces is the result of a mandatory obligation imposed by the federal Selective Service Act or who volunteers for service as a member of the Armed Forces of the United States.
EXCEPTIONS TO THE HOMESTEAD EXEMPTION:
State and County Taxes
The State of Florida, its counties or municipalities are allowed to collect past due property taxes. All can force a sale to collect. Your homestead designation will not prevent a tax sale.
Mortgage companies and any parties that the property was specifically pledged to as collateral, can and would likely foreclose to recover their money.
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Creditors of a co-owner who does not live at the property as a primary residence:
If someone else owns part of the homestead property but does not live on the property, the homestead does not protect that co-owner. Their creditors can potentially force the sale of the property. See Homestead Exemption and Joint Tenancy, Tenants in Common and the risk of Debt.
Contractors who do work on your property:
I worked with a Seller who hired a contractor to upgrade his home before selling. The contractor did bad work but not unqualified work. The seller refused to pay, and the contractor put a lien on the property. The short story is that once the house was in contract, the Title search showed the lien (as expected), and the seller then paid the contractor which removed the lien. There are bonding options that a seller can use to set aside a mechanic’s lien, but you need to decide if it’s worth the battle.
Condo and Homeowner Associations:
If a condo association has placed a lien on the property predating the homestead, they may be able to collect what is owed from the homestead.
HOMESTEAD and keeping the exemption after death:
On death, if the property was the primary residence of the deceased, the Florida Homestead property can be protected from creditors. To keep this exemption, the person or people who are to inherit the property must notify the court through a specific petition to keep the homestead intact. If you don’t file the petition with the court, you won’t get the exemption. Speak with a Probate Attorney.
Asset Protection Variables
If you are considering asset protection using the Florida Homestead Act, you should consult with an attorney who can legally explain the variables.
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What about Property and Divorce in Florida:
Florida is an Equitable Distribution State. Marital property is divided between the parties based on certain factors separating pre-marriage and after-marriage property. However, variables can change how pre-marriage property is divided.
If you have Real Estate and other valuable property, you should consult with an attorney who specializes in Divorce.
Just remember, when it’s time to divide your Real Estate, you’re both agreeing to call Scott!
941-882-5494 Ext 701
813-324-1005 Ext 701
REAL ESTATE OWNERSHIP RIGHTS
Fee Simple Absolute:
Complete ownership. You can do what you want to and within your property subject to local, State and Federal rules/laws.
Fee Simple Defeasible:
Similar to Absolute except a condition exists. If the condition is broken or not met, the property will revert back to the original owner or a third party.
Bundle of Rights:
There are numerous restrictions that can be attached to your Bundle of Rights, but the top tier of these rights are The Right Of:
- Possession – Title Holder is the Legal Owner
- Control – You can use the property in any legal manner
- Exclusion – Title holder can limit who may enter property (there are exceptions)
- Enjoyment – You can use your property however you enjoy (legal use only)
- Disposition – Title holder sell, transfer etc
This article contains a general understanding of Ownership Rights in Real Estate but is not and DOES NOT contain legal advice. The author is a Real Estate Broker and is not an Attorney or affiliated with a Law Firm or a substitute for an Attorney or Law Firm. For legal advice, seek an Attorney or Law Firm that handles the subject matter of your interest. Information in this article is deemed accurate but is not guaranteed.
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