Estates in Land in Florida

excerpted by Mark C. Van Eden, Esq., from Florida Real Estate Transactions, Ralph E. Boyer and William H. Ryan.

Florida follows the traditional concept of recognizing a limited number of well-defined estates in land. The term “estates” refers to interests in land that either are or may become possessory. Estates that have no present right to possession but which will or may become possessory at some time in the future are called future interests. Each estate or interest is created by the use of appropriate words in the conveying instrument, and, once created, possesses such characteristics as have been recognized and sanctioned as applicable to that estate by the law of the jurisdiction. This article delineates the types of estates that are recognized in Florida.

I. Freehold Possessory Estates in Severalty

Freehold Estate Defined

A freehold estate is an interest in real property of indefinite duration. It can consist of a life estate, or any other estate greater than a life estate.

Freehold estates include:

• Fee simple absolute [see IA];
• Fee simple determinable [see IB];
• Fee simple subject to condition subsequent [see ID]; and
• Life estate [see ID].

A. Fee Simple Absolute

1. Definition: Approximates complete ownership.
2. Typical conveyance: “To Ronald Roe and his heirs,” or simply “To Ronald Roe” provided that no qualifying or limiting words follow in other parts of the deed.

 

1.Definition and Characteristics

The “fee simple absolute,” or “fee simple” is the largest estate in real property known to the law. It represents the most comprehensive group of rights that a person may have in land,                             including the right to exclusive possession, use and enjoyment. The estate is one of general inheritance. It is inheritable by collateral, as well as lineal heirs with the potential to continue                     indefinitely. Alternatively, the holder of a fee simple is free to assign, convey or devise all or part of the estate.

2. Creation

a. Common Law Requirement to Include Words of Inheritance

A fee simple absolute may be created by deed or will. At common law, in order to create a fee simple absolute in an inter vivos transfer, a deed was required to contain the word “heirs” as a word of inheritance. In a will, on the other hand, equivalent expressions denoting the intention to create a fee simple were considered sufficient. Thus, a deed containing the phrase “to B” or “to B forever” or “to B and his assigns” only gave B a life estate. A deed “to B and her heirs,” however, indicated that B took a fee simple. The words “and her heirs” were interpreted as words of limitation, not words of purchase.  Words of limitation describe the quantum of the estate granted, while words of purchase indicate to whom the estate is granted. In a conveyance, “to A and her heirs,” therefore, if the heirs take at all, they will take be descent and not as a result of the deed itself. They may never obtain the estate because A, the fee simple owner, may freely alienate the estate or devise it to whomever the owner pleases.

b. Words of Inheritance Not Required After 1903

In 1903, the Florida legislature abolished the necessity of including words of inheritance to create a fee simple estate.[1]

Although section 689.10 dispenses with the requirement of using the word “heirs,” inclusion of the word is still advisable.

Inclusion of the word “heirs” will preclude any ambiguity or construction of a different estate, since real property practitioners and judges recognize that the phrase “and her heirs” creates a fee simple. In addition, standard printed deed forms generally include the word.

For example, the conveyance by A, a fee simple owner, “to B and her heirs so long as the land is used for residential purposes and when the land is no longer used for residential purposes it will revert to A and his heirs” creates a fee simple determinable in B.  During such an estate the grantor retains a possibility of reverter [see IVB].

If the stated event occurs, an estate in fee simple determinable always reverts to the grantor, his or her heirs or assigns. If the interest following the fee estate passes to a third person, on the other hand, then the original determinable estate created is called a fee simple subject to a special limitation or subject to an executory interest [see IVD]. For instance, the conveyance “to B and her heirs so long as the land is used for residential purposes and when the land is no longer used for residential purposes then to C and her heirs” creates a fee simple subject to an executory interest in B and C.

Prior to the occurrence of the terminating event, the holder of a fee simple determinable – e.g., B in the conveyance described above – has all the rights and liabilities of a fee simple absolute owner. In that example, B has an absolute right to exclusive possession, use and enjoyment of the property. She is free to assign, devise or convey her interest. The holder of a determinable fee, however, cannot convey an absolute fee without joining those persons who would take upon occurrence of the contingency. Thus, in the example above, when B transfers the land, the contingency is transferred along with it.

B. Fee Simple Determinable

1. Definition: An inheritable estate that will automatically terminate on breach of an expressed condition.
2. Typical conveyance: “To Donald Dough and his heirs for so long as used for church purposes, and if the land is not so used, it shall immediately revert to the grantor, his heirs or assigns.”

 

Definition and Characteristics

A fee simple determinable, also known as a “base fee” or “qualified fee,” is an inheritable estate that will automatically terminate on the happening or non-happening of a contingency annexed to the conveyance.[1]

For example, the conveyance by A, a fee simple owner, “to B and her heirs as long as the land is used for residential purposes and when the land is no longer used for residential purposes it will revert to A and his heirs” creates a fee simple determinable in B. During such an estate the grantor retains a possibility of reverter [see IVB].

If the stated event occurs, an estate in fee simple determinable always reverts to the grantor, his or her heirs or assigns. If the interest following the fee estate passes to a third person, on the other hand, then the original determinable estate created is called a fee simple subject to a special limitation or subject to an executory interest [see IVD].[2] For instance, the conveyance “to B and her heirs so long as the land is used for residential purposes and when the land is no longer used for residential purposes then to C and her heirs” creates a fee simple subject to an executory interest in B and C.

Prior to the occurrence of the terminating event, the holder of a fee simple determinable – e.g., B in the conveyance described above – has all the rights and liabilities of a fee simple absolute owner. In that example, B has an absolute right to exclusive possession, use and enjoyment of the property. She is free to assign, devise or convey her interest. The holder of a determinable fee, however, cannot convey an absolute fee without joining those persons who would take upon occurrence of the contingency. Thus, in the example above, when B transfers the land, the contingency is transferred along with it.

Creation and Construction

A fee simple determinable is normally introduced by a phrase such as “so long as,” “until” or “during that time.” In addition, the conveyance may contain an explicit reverter clause. Particular words, however, are not required. If the language of the conveyance clearly evinces the parties’ intent to create an estate that would automatically expire upon occurrence of a stated event, then a court is likely to treat the estate as a determinable fee.[1]

Generally, however, conditions or limitations in a grant are not favored by the law and will be strictly construed.

Grantors commonly attach two types of contingencies to a conveyance of a fee simple determinable. First, grantors often endeavor to restrict the use of land. “To B for so long as used for park purposes,” is an example of this type of determinable fee, as is “to B during the time that no motor vehicles are driven across the premises.” This form of restriction may potentially endure forever.

Second, a fee can be determined upon the occurrence of a collateral event. For instance, a conveyance “to B until she remarries,” also creates a fee simple determinable. The contingency in this latter category, however, can be rendered impossible to occur. If this happens the determinable fee is enlarged into a fee simple absolute. For instance, in the conveyance “to B until she remarries,” B can only remarry during her lifetime. Hence, upon the death of B, the determinable fee is enlarged into a fee simple absolute.

Courts will specifically enforce determinable fees that are not contrary to law or public policy. A devise by a man to his widow “so long as she remains single” does not violate public policy and is therefore enforceable. Such a devise is not considered an invalid restraint on marriage, but only a measure of the duration of the devised estate

C. Fee Simple Subject to Condition Subsequent

1. Definition: An inheritable estate that may be terminated by the grantor or his successors on breach of a condition expressed in the conveyance.
2. Typical conveyance: “To Larry Land and his heirs but if the premises are used for other than religious purposes, the grantor, his heirs or assigns, may re-enter and possess the estate as formerly.”

 

Definition and Creation

A fee simple subject to condition subsequent is a fee simple estate that gives the grantor the right to terminate the estate upon failure or non-performance of the stated condition.[1] A conveyance, therefore, “to B, upon condition that B never sells alcoholic beverages on the premises, and if B sells alcoholic beverages, then A, the grantor, has a right to reenter the land and terminate B’s estate” creates a fee simple subject to condition subsequent. Prior to the grantor’s reentry due to a breach, B, the holder of the present fee estate, has all the rights and liabilities of an owner in fee simple absolute [see IA]. While the holder has the present fee estate, the grantor retains a “right of reentry” or “power of termination” [see IVB].

A fee simple subject to condition subsequent is generally introduced by a phrase such as “provided that”, “on condition that,” or “but if”. An express reverter clause giving the grantor the right to terminate the estate also should be included in the conveyance. Although no precise form is required to create an estate subject to a condition subsequent, the intent of the parties must be clearly expressed because forfeiture conditions will be strictly construed.

If the language setting forth the condition is ambiguous or if a reverter clause is omitted, modern courts are likely to construe a limitation on use as a covenant and not a condition. A covenant is a legal restriction on the use of land, the breach of which gives rise to damages. True conditions, on the other hand, will be specifically enforced by divesting the title from the present holder if the condition is broken. When the intent of the parties is unclear, courts will construe the instrument in favor of the grantee, because the law discourages forfeiture.

A restriction contrary to law or public policy will not be enforced either as a covenant or a condition. By Florida statute, reverters and forfeiture provisions that are of unlimited duration constitute unreasonable restraints on alienation and are, therefore, contrary to public policy. Such provisions are made void and unenforceable 21 years from the date of the conveyance creating the provision.[1]

When a condition subsequent is breached, the fee estate continues in full force until the grantor takes some affirmative action to terminate the estate. Traditionally, his or her heirs or assigns, to actually reenter the land, send a notice of forfeiture or make a formal demand for possession. Today, commencement of an action to regain the land is sufficient to revest title in the grantor.

Distinguished from a Fee Simple Determinable

The distinction between a fee simple determinable, discussed in IB, and a fee simple subject to condition subsequent is a subtle but important one. The words creating the former limit the duration of the estate to the period prior to the occurrence of the stated contingency, while the words creating the latter merely permit the estate to be terminated when the contingency occurs. The test is whether the estate automatically expires on the happening of the stated event, in which case it is a fee simple determinable, or whether the grantor has the power to terminate the estate by some affirmative action, in which case it is a fee simple subject to condition subsequent. For

instance, the conveyance, “to B so long as B runs the family business, and when B ceases to run the family business the estate automatically terminates and reverts to the grantor,” creates a fee simple determinable. A conveyance “to B provided that B runs the family business, and if B ceases to run the family business, the grantor has the right to terminate the estate,” gives rise to a fee simple subject to condition subsequent.

D. Life Estate

1. Definition: An estate measured by the life of a human being.
2. Typical conveyance: “To Betty Bookkeeper for life,” or to “Alice Arnette for as long as she lives and remains a widow.” It may also be created by operation of law as in the descent of a homestead.

 

Defined

A life estate is a freehold interest the duration of which is measured by the life of a particular human being. The conveyance “to B for life,” creates a life estate in B, measured by the length of B’s life. Legal life estates resulting from voluntary conveyances are rare, while equitable life estates, in the form of trusts, are common. Thus, individuals typically convey or devise property to a trustee for the benefit of a certain person for his life, but rarely make an outright conveyance to the life beneficiary.

Creation

 a. Express and Implied

A grantor may expressly convey a life estate by deed or will, as in the conveyance, “to B for life” or “to A until her death.”

A grantor may reserve a life estate to herself or himself, while conveying the remainder in fee simple. For instance, if the grantor, G, conveys “to A and his heirs, subject however to a life estate in G,” G has successfully reserved a valid life estate for herself.

A life estate may also arise by implication from a conveyance that necessarily ends upon the death of a particular individual. For example, a transfer “to B for so long as he wishes to live in Albert Lea” was held to be a life estate determinable. A conveyance “for as many years as desired by the party of the second part,” however, was found to create a tenancy at will. The issue of whether a conveyance created a life estate determinable or a tenancy at will lurked in the background of Maszewski v. Piskaldo, in which a life tenant, an 83 year-old man, and the holder of the remainder, a 79 year-old woman, lived together on the premises at issue. The two agreed that “during their lifetimes, they shall live together … neither shall have the right to dispossess the other from the premises. However … there shall be non inhibition against leaving said premises.” Sometime later the man changed the locks on the door and effectively dispossessed the woman. In an action to enforce the contract, a majority of the district court found no mutuality of obligation because the woman never had the right to dispossess the man, a life tenant. Thus, although the majority did not say so, it treated the woman as a tenant at will, perhaps only as a licensee.[1]

Courts have also struggled to decide whether a devise such as “to A, for so long as she remains a widow,” constitutes a fee simple determinable or a life estate determinable. As a result of the statute abolishing the necessity of words of limitation to create a fee simple,[2] the preferred construction is that of a fee simple determinable. The test is whether the grantor intended the estate to end on the death of the grantee. This ambiguity could be reduced, or eliminated, by use of express life estate language such as “to A, for so long as she lives and remains a widow,” or “to A, until death or remarriage.” Life estates may also be created subject to conditions subsequent.

 b. Operation of Law

Life estates also may result from operation of law. Perhaps, the most important example of a legal life estate arises under Florida’s homestead provisions.[1] Legal life estates also arise under the statutes abolishing the fee tail and the Rule in Shelley’s case [see IE].

c. Per Autre Vie

Life estates may be per autre vie, that is, for the life of a person other than the holder of the estate. The conveyance “to A, for the life of B,” creates such an estate. More commonly, however, a life estate per autre vie, will come into existence if a life tenant conveys his or her interest. Hence, if A has a life estate and conveys that interest to B, B has an estate for the life of A. Even if a life tenant purports to convey a fee simple to a purchaser without knowledge, only a life estate is conveyed.

Termination

A life estate, naturally, is not an inheritable estate. It terminates at the death of the life tenant, or in the case of an estate per autre vie, at the death of the measuring life.

A merger of a life estate and the remainder will terminate the life estate and creates a fee simple. Also, under rare circumstances, a life tenancy may terminate by adverse possession by the life tenant.

Rights and Duties of Life Tenant and Remainderman

During his or her lifetime a life tenant is free to alienate his or her interest in the real property. The estate conveyed ends upon the death of the measuring life.

E. Estates and Rules Not Recognized

E(1).    Rule in Shelley’s Case – Abolished in Florida

1. The Rule, Its Effect, and Relevance

The classic statement of the Rule in Shelley’s Case is as follows:

It is a rule of law, when the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, that always in such case the heirs’ are words of limitation of the estate and not words of purchase; that is to say, the estate of the ancestor is not a life or other freehold estate with remainder to the heirs or heirs of the body, but an estate in fee or an estate tail according to circumstances.

The rule is a highly technical one, and led to much litigation and in many cases without a doubt to the defeat of a testator’s intentions. It probably originated in the wish of the laws to preserve to the lords their right of wardship, which would have been ousted by the heir taking as purchaser and not as successor. The rule’s practical effect was to preserve the incidents of feudal tenure by allowing the heirs of the grantee to take only by succession when the grantee died, and not by the grant of the remainder to them. The true significance of the rule was that it created a situation when the life estate merged with the future interest to transform the limitation.

2. Application of Rule

The effect of the Rule in Shelley’s Case was to take the remainder from the heirs and vest it in the life tenant. Thus, under the Rule, a conveyance “to A for life, then to his heirs” resulted in A obtaining both the life estate and the remainder in fee. The doctrine of merger then applied to combine the two estates and give A a fee simple absolute.

3. Abolition of Rule

The Rule in Shelley’s Case was abolished in 1945 by the enactment of section 689.17 of the Florida Statutes.

The statute better effectuates the intent of the grantor than did the Rule. Hence, a conveyance today “to A for and during his natural life and then to his heirs” results in A getting a life estate in accordance with the tenor of the instrument. The remainder in fee simple is given, per stirpes, to A’s lineal descendants.

If A has no lineal descendants when the conveyance takes effect, the remainder is contingent [see IVC2]. As soon as a lineal descendant is born, however, the remainder vests subject to partial divestment. If, therefore, the life tenant, A in the foregoing example, has had one or more lineal descendants, all of whom predecease him, the land would pass to the heirs, devisees or transferees of A’s deceased lineal descendants. The statute, however, does not provide any guidance when the grantee life tenant dies without ever having had any lineal descendants. The most likely construction is that the grantor retains a reversion and at the time the life tenant dies without issue the land reverts to the grantor or his or her heirs or assigns.

E(2). Fee Tail – Abolished in Florida

1. Historical Background

The fee tail was first recognized at common law after the enactment of the Statute de Donis in 1285. Prior to this statute a conveyance “to A and the heirs of her body” created a fee simple conditional. In such an estate the grantee, A, obtained a fee simple conditioned on her having heirs of her body. The grantor retained a possibility of reverter.  As soon as A had a child, the condition was satisfied and A’s estate was automatically enlarged into a fee simple absolute for most purposes. She could then convey a fee simple absolute and by the simple expediency of a reconveyance circumvent any further restrictions inherent in the original conditional nature of the fee. The Statute de Donis converted the fee simple conditional into a fee tail.

2. Definition and Characteristics of Fee Tail

The Statute de Donis converted the fee simple conditional into a fee tail. A fee tail was an inheritable estate, but it was inheritable by lineal heirs only, not collateral heirs.  A tenant in tail could not convey the estate except for a period commensurate with his own life. He or she could not, naturally, devise the estate because it descended to lineal heirs. Thus, a conveyance “to B and the heirs of his body,” would pass to B for life, then to B’s lineal descendants, if any. Then to the next generation of lineal descendants and so on. If any tenant in tail died without lineal descendants, the estate would either pass to a designated remainderman or revert to the grantor, his or her heirs or assigns, according to the creating instrument.

3. Creation and Construction

Common phrases used to create an estate tail included “heirs of the body,” “bodily heirs,” “issue of the body,” or “bodily issue.”

The term “bodily heirs” or its equivalent had to be used as words of limitation, not purchase, and had to refer to an indefinite failure of issue. That is, the grantor must have intended that the estate would pass from generation to generation, for a potentially infinite duration, as long as lineal descendants of the grantee existed.

4. Abolition of Fee Tail

Florida first abolished the fee tail in 1829.[1] In a case where the statute abolishing the fee tail will be properly applied, the first tenant would take only a life estate from the conveyance. A remainder in fee simple would be given to his or her lineal descendants per stirpes. The remainder in favor of the lineal descendants is determined at the time of the first taker’s death. The remainder, therefore, is contingent until that death, even if lineal descendants have been born to the first taker during his or her lifetime.

5. Comparison of Statutes Abolishing Fee Tail and Rule in Shelley’s Case

A conveyance such as “to A for life and then to the heirs of his body,” would seem to trigger both the statute prohibiting the fee tail and the statute abolishing the Rule in Shelley’s case.[2] The language of the two statutes, however, indicates that the statute abolishing the Rule in Shelley’s case governs such a conveyance. By its terms, section 689.17 applies to “any instrument purporting to create an estate for life in a person with remainder to her or his … heirs of her or his body,” while Section 689.14 explicitly applies only to “any instrument purporting to create an estate tail.”

The decision as to which statute controls this situation is important for two reasons. First, the remainder resulting from an erstwhile fee tail is contingent until the death of the first taker, while the remainder created under the statute abolishing the Rule in Shelley’s case vests at the birth of the first lineal descendant of the first taker. Second, Section 689.14 does not indicate to whom the estate passes if the first taker dies without lineal descendants. Section 689.17, on the other hand, explicitly directs that the estate passes to the designated remainderman and in absence of a designation, reverts to the grantor.

II. Concurrent Estates

A. Tenancy in Common

1. Definition: An estate held jointly by two or more persons in such a manner that on the death of one co-owner his interest descends to his heirs or passes under his will. Each party is considered as owning a separate undivided interest that he can effectively transfer or encumber as he pleases. There is no right of survivorship.
2. Typical conveyance: “To Larry Land and Perry Purchaser and their heirs.” 

 

Characteristics

In a tenancy in common, each cotenant owns an undivided interest in the property. There is no right to survivorship in a tenancy in common.

The only unity necessary for a tenancy in common is unity of possession. Accordingly, tenants in common need not have the same interest, nor need their interests arise at the same time, nor need they take from the same instrument. Thus, one cotenant may have a one-half interest, another a one-fourth interest, and two others a one-eighth interest; one may have acquired his interest by descent 10 years ago and another may have acquired his interest by conveyance just yesterday.

Each tenant in common, although owning only an undivided interest and having no exclusive right to possession, has a separate estate that is freely alienable, attachable by creditors, descendible to heirs, and devisable by will.

A tenancy in common differs from both a joint tenancy [see IIB] and a tenancy by the entireties [see IIC] in that there is no right of survivorship in a tenancy in common.[1] When a tenant in common dies, his or her interest passes to his or her personal representatives, creditors, heirs, or devisees. It does not pass to the other tenants by operation of law.

Creation

A tenancy in common may be created in a number of ways. A conveyance to two or more persons other than husband and wife creates a tenancy in common, unless the conveying instrument expressly provides for the right of survivorship.[1] A transferee of a tenant in common becomes a tenant in common with the other cotenants. In addition, a joint tenant with right of survivorship can convert his or her estate into a tenancy in common by conveying his or her interest inter vivos to another person or to himself or herself.

A husband and wife may own land as tenants in common if the conveying instrument clearly expresses the intent to create such an estate rather than a tenancy by the entireties. A tenancy by the entireties [see IIC] automatically becomes a tenancy in common on dissolution of marriage[2] unless the judgment of dissolution provides otherwise. In addition, if one spouse kills the other spouse, the entireties estate is severed and the surviving spouse becomes a tenant in common with the victim’s heirs.

B. Joint Tenancy with Right of Survivorship

1. Definition: An estate jointly held by two or more persons so that on the death of one co-owner the entire title vests in the survivors until there is only one survivor at which tine he owns it absolutely in severalty. The estate may be terminated by acts of the parties prior to the death of the co-owners, however.
2. Typical conveyance: “To Ronald Roe and Donald Dough and their heirs as joint tenants with the right of survivorship and not as tenants in common.”

 

Introduction

Any number of related or unrelated individuals may hold property as joint tenants.  as with a tenancy in common, each cotenant in a joint tenancy owns an undivided interest in the land rather than an interest in severalty in part of the land. In both a joint tenancy and a tenancy in common, each cotenant has an equal right to possession and control of the property. This right, known as unity of possession, is the only unity necessary for a tenancy in common. In contrast, the following three additional unities are required for the creation of a joint tenancy: (1) unity of time, (2) unity of title, and (3) unity of interest.  In other words, the joint tenants must take title to the property at the same time, from the same instrument, and in the same proportionate share.

The principle feature of a joint tenancy is the right of survivorship. Property that is held in a joint tenancy does not pass by descent on the death of a joint tenant, but instead vests by operation of law in the surviving joint tenant or tenants. The interest of a joint tenant terminates at the moment of death and vests in the surviving joint tenants.  Accordingly, there is nothing to pass to the deceased tenant’s heirs, devisees, or surviving spouse. As a result of the survivorship feature, the property passes without the trouble and expense of probate, although the property does not escape federal or state death taxes.

Creation

A joint tenancy must be expressly created. Although no certain words are necessary to create a joint tenancy, an instrument must provide for a right of survivorship or the instrument will not create a joint tenancy.[1] However, a survivorship provision is not necessary to create an estate by the entireties[2] [see IIC].

If a joint tenancy with right of survivorship is desired, it is recommended that the following language be used in the instrument: “To A and B and their heirs as joint tenants with the right of survivorship and not as tenants in common.” This leaves nothing for construction as the intent is clear. The words “joint,” “jointly,” or “joint tenancy” are insufficient to create a right of survivorship.[3]

A joint tenancy with right of survivorship may be the result of an unsuccessful attempt to create an estate by the entireties. For example, in one case, a conveyance to “husband and wife, as an estate by the entirety with full rights of survivorship” created a joint tenancy instead of an estate by the entireties because the grantees were not actually married.

The owner of property may create a joint tenancy in the property by conveying the property to a third party who will then convey the property to the owner and another party as joint tenants with right of survivorship. However, the same result can be achieved without the use of a third party by a deed from an owner to himself or herself and another, if the deed discloses an intention to create a joint tenancy with the right of survivorship. This result appears to be inconsistent with the requirement that the four unities be present, as in this situation the tenants do not take title at the same time or from the same instrument. However, the result is practical and can be justified on the theory that the grantor does not retain his or her prior title or interest, but instead takes a new estate together with the grantee.

Severance

a. Conveyance by Joint Tenant

Any joint tenant can sever a joint tenancy and convert it into a tenancy in common by conveying his or her undivided interest to another person. Thus, if A and B are joint tenants who each own a one-half interest and A conveys his interest to C, C and B become tenants in common. The unities of time and title are thus destroyed. Similarly, if A, B and C are joint tenants and A conveys his one-third interest to D, D becomes a tenant in common as to his one-third and B and C remain joint tenants as to their two-thirds. As a result, D’s one-third interest will pass through devise and descent, but B and C will have a right to survivorship in each other’s one-third interest.

A conveyance by a joint tenant severs the tenancy even if the joint tenant retains some form of interest in the property. For example, a joint tenant severs the joint tenancy by conveying the property to another but reserving a life estate in the property. Likewise, a joint tenant’s conveyance of his or her interest to himself or herself and his or her spouse severs the joint tenancy, and the original tenants and the spouse become tenants in common.

A joint tenant may also sever the joint tenancy by conveying his or her interest in the property to himself or herself.

b. Judicial Sale

A judicial sale of one tenant’s interest severs the joint tenancy as to that interest.  Thus, if A and B hold the property as joint tenants and A’s interest is sold to X at a judicial sale, B and X will hold the property as tenants in common. If A, B, and C hold the property as joint tenants and A’s interest is sold to X at a judicial sale, X becomes a tenant in common as to X’s one-third share, but B and C remain joint tenants as to their two-thirds.

c. Executory Contract to Convey Interest

If one joint tenant enters into a valid contract to convey his or her interest but dies before the contract is performed, that tenant’s interest in the property does not inure to the surviving cotenant but descends through the deceased’s estate to be distributed in accordance with the terms of his or her will.

d. Conveyance to One Joint Tenant

A joint tenancy is also terminated if all but one of the cotenants convey their respective interests to the non-conveying cotenant. Under such circumstances the grantee cotenant becomes sole owner.

Effect of Homicide

An intentional and unlawful killing or one joint tenant by the other joint tenant severs the interest of the decedent. Thus, the decedent’s interest passes as the property of the decedent and the killer gets no rights by survivorship.[1] However, the killer does not forfeit his or her interest in the jointly held property. Instead, he or she holds an undivided interest in the property as a tenant in common with the decedent’s heirs. The statute that governs the effect of homicide on a joint tenancy applies to joint tenancy and tenancies by the entirety

C. Tenancy by the Entireties

1. Definition: An estate jointly held by husband and wife so that on the death of one the entire estate vests in the survivor. Neither party may effectively convey or encumber the estate without the joinder of the other.
2. Typical conveyance: “To Barry A. Barrister and Bercine B. Barrister, his wife, and their heirs.”

 

Characteristics

Only a husband and wife may own property as tenants by the entireties. A tenancy by the entireties is essentially a joint tenancy modified by the common-law doctrine that a husband and wife are one person. A tenancy by the entireties exists as long as the four unities required for a joint tenancy [see IIB] plus a fifth unity, the marriage of the parties, are present. Assuming the first four unities are established, the intent of spouses to hold real property in tenancy by the entireties is presumed.

The right of survivorship is an important feature of a tenancy by the entireties.  Because of the right of survivorship, property that is held by the entireties does not pass by descent but vests by operation of law in the surviving spouse. The right of survivorship exists in a tenancy by the entireties without any written provision establishing such right.

A tenancy by the entireties may not be terminated by either spouse acting alone.  the inability of either spouse acting alone to terminate the tenancy is the major difference between a tenancy by the entireties and a husband-and-wife joint tenancy.

Creation

a. Devise, Transfer, or Conveyance by Third Party

A devise, transfer, or conveyance of real property to named parties who are husband and wife is presumed to create a tenancy by the entireties.[1]

In creating an estate by the entireties, it is customary to describe the grantees as husband and wife. For example, property may be conveyed “To John A Smith and Mary B. Smith, husband and wife” or “To John A. Smith and Mary B. Smith, his wife.”  Designating the grantees as husband and wife is desirable so that the chain of title will clearly indicate the type of estate and the examiner will not have to speculate as to whether the grantees are tenants by the entireties or some other type of cotenants. However, even if the grantees are not designated as husband and wife, they will still take as tenants by the entireties if they are in fact married.

A tenancy by the entireties can only exist between husband and wife. Designation of the grantees as husband and wife cannot be effective to create an estate by the entireties if in fact the grantees are not married. If the grantees are not married, a tenancy in common or joint tenancy will result instead.

b. Creation by Direct Conveyances Between Spouses

i. Prohibited at Common Law

A spouse who holds title to real property as a separate owner is authorized by statute to create a tenancy by the entireties in both spouses.[1] However, at common law a spouse could not create a tenancy by the entireties by a direct conveyance. Because an estate by the entireties is a special type of joint tenancy requiring all of the four unities plus the additional unity created by marriage, it was necessary at common law for both parties to take their interest at the same time from the same conveyance. Thus, if either spouse owned land individually, he or she could not directly convey to the other spouse to create an estate by the entireties. Instead, the owner-spouse was required to first convey the property to a third party who would then reconvey the land to the husband and wife.

ii. Statutory Provision

In Florida, direct conveyances between husband and wife are specifically authorized by statute.[1] The statute provides that the spouse holding title to real property can create a tenancy by the entireties by either conveying the property to the other spouse by a deed that declares that its purpose is to create a tenancy by the entireties or by conveying the property to both spouses.[2] The grantee-spouse need not joint in the execution of the deed.

For example, if H owns land in fee simple and wishes to create an estate by the entireties, he may do so by executing a conveyance to “H and W, his wife, for the purpose of creating an estate by the entireties.” Likewise, H may execute a conveyance to “W for the purpose of making the grantor and grantee tenants by the entireties.

iii.        Homestead Property

The Florida Constitution now provides that a homestead owner may by deed transfer the title to the homestead to an estate by the entirety with his or her spouse.[1] Although the Constitution ordinarily requires the joinder of both husband and wife in a conveyance of the homestead,[2] joinder is not required for an interspousal conveyance of solely owned homestead property to husband and wife to create an estate by the entireties.

c. Ineffective Attempts to Create the Estate

As previously stated [see IIC2a], a tenancy by the entireties cannot be created unless the parties are in fact husband and wife.

The estate that results from ineffective attempts to create an estate by the entireties depends on the circumstances and equities of each case. A tenancy in common will be the usual result. However, if the conveyance mentions a right of survivorship, either a joint tenancy or a tenancy in common with an executory interest in favor of the survivor may result. In the latter case, each tenant would have an undivided interest subject to defeasance on the death of the cotenant and subject also to an executory interest in the other half that will become possessory on surviving the other cotenant.

3. Alienability and Rights of Creditors

a. Joint Action Generally Necessary

Neither spouse has a separate right in property owned by the entireties.  Therefore, neither spouse can sell, mortgage, or otherwise encumber entireties property without the consent of the other spouse or the right to act as the other spouse’s agent.

In general, to transfer or to encumber entireties property both spouses must join in the deed, conveyance, or mortgage.

b. Debts and Liens

Joint creditors of both spouses can attach property held by the entireties and sell it to satisfy the obligations jointly incurred by husband and wife. However, unlike property held in a joint tenancy or a tenancy in common, entireties property is not available to answer for the individual debts of either spouse. Therefore, individual creditors of either the husband or wife cannot attach that spouse’s separate interest in an estate by the entireties.

c. Interspousal Transactions

Interspousal transactions are an exception to the rule that neither tenant can individually convey his or her interest in entireties property. Either spouse can effectively convey or release to the other spouse his or her interest in entireties property, thereby vesting in the other spouse an absolute fee simple title. Thus, if H and W are tenants by the entireties, H can effectively vest absolute ownership in W by conveying or quitclaiming all his interest in the estate to her. The joinder of the grantee-spouse is unnecessary for the conveyance to be effective.

4. Termination of Tenancy by the Entireties

a. Dissolution of Marriage

A tenancy by the entireties automatically becomes a tenancy in common on dissolution of marriage,[1] unless the judgment of dissolution provides otherwise. On dissolution, each former spouse holds an undivided one-half interest in the former entireties property.

b. Conveyance of Property

Tenants by the entireties may terminate the entireties estate by conveying the entireties property. Both spouses must join in the conveyance unless one spouse is conveying his or her interest to the other spouse [see 3c above]. The spouses may convey the property to a third party or they may convey the property to themselves as tenants in common or as joint tenants.

c. Homicide

If one spouse unlawfully and intentionally kills the other spouse, the surviving spouse’s right of survivorship in any property that the spouses held by the entireties terminates.[1] In this situation, the decedent’s share of the entireties property passes as the decedent’s property.[2] Although the wrongdoing spouse loses the right of survivorship, he or she does not otherwise lose his or her interest in the property. Accordingly, the surviving spouse becomes a tenant in common with the decedent spouse’s heirs, with the surviving spouse owning a one-half interest in the property.

5. Partition

In General

Partition refers to the process whereby two or more co-owners of property effect a dissolution of their common ownership and convert it into several ownerships of fractional portions of the original common property. Property may be partitioned if the cotenants hold as tenants in common or joint tenants.[3]  Property that is held as an estate by the entireties may not be partitioned.

2. Voluntary Partition

Co-owners may voluntarily partition their jointly owned property by conveying proper interests to each other so that each acquires complete ownership of a portion of the land. Such a voluntary partition is no more than an application of each cotenant’s power to convey.

It is also possible to effect a partition by a valid written agreement signed by all of the contenants or by conduct ratifying another cotenant’s conveyance of a specific part of the land to an outsider.

3. Partition by Judicial Action

A suit for partition may be brought by one or more joint tenants or tenants in common.

III. Property Rights Between Spouses

A. Elective Share

The surviving spouse of a decedent is entitled to an elective share equal to thirty percent of the decedent’s elective estate.

Elective Share of Surviving Souse of Decedent Dying on or After October 1, 2001

1. Overview of Law Determining Elective Share of Surviving Spouse

The surviving spouse of a decedent who was domiciled in Florida at the time of death is entitled to an elective share equal to 30 percent of the decedent’s elective estate.[1]

2. Elective Estate Consists of Aggregate Value of Statutory Components

The elective estate consists of the aggregate value of nine components enumerated by statute.[2] The components relevant to the decedent’s real property interests include:

• Probate Estate.
• Interests in Joint Tenancy with Right of Survivorship or Tenancy by the Entirety.
• Revocable Transfers Prior to Death.
• Retained Right to Income or Principal from Transferred Property.
• Near Death Transfers.
• Property Transferred in Satisfaction of Elective Share

3. Exclusions Relevant to Real Property from Computation of Elective Share

The following interests, with particular relevance to real property, are expressly excluded from the computation of the elective estate:

• Prior Irrevocable Transfers.
• Transfers for Adequate Consideration.
• Transfers with Spouse’s Written Consent.
• Decedent’s Share of Community Property.
• Property Possessed Through General Power of Appointment.
• Homestead Property.

4. Elective Share Is in Addition to Right to Homestead, Exempt Property, and Family Allowance.

The elective share is in addition to the surviving spouse’s rights to homestead, exempt property and the family allowance.

B. Homestead

A homestead held in the deceased owner’s name descends to the spouse for life with a remainder to the lineal descendants.

1. Exemption of Homestead from Forced Sale

a. Overview of Homestead Exemption from Forced Sale

In order to protect and preserve the interest of the family in the family home, and to protect individuals from utter destitution, increase family stability, provide a refuge from economic     misfortunes, and encourage property ownership and individual financial independence, the Florida Constitution provides an exemption from forced sale for the family homestead.[1]

There is no relationship between the homestead exemption from forced sale and the homestead exemption from real property taxes.

b. Claimant Must Be Natural Person Residing in Florida

Any natural person who resides in Florida may claim an exemption on property used as a homestead.[2] While citizenship is not a prerequisite for claiming the exemption, foreign nationals who have no permanent resident status in the United States cannot qualify for the exemption on real property they own in Florida.

2. Property That Qualifies for Exemption

 

1. Acreage and Contiguity Requirements for Property Inside and Outside Municipality

 

The homestead exemption from forced sale may be applied to:[3]

 

• Up to 160 acres of contiguous land and improvements located outside municipality, or
• Up to one-half acre of contiguous land, on which the exemption is limited to the residence of the owner or the owner’s family.

 

3. Obligations That Are Enforceable Notwithstanding Homestead Exemption

 

1. Liens Specified as Enforceable by Constitution Notwithstanding Exemption

 

The constitutional exemption of homestead property from forced sale expressly does not protect the homestead from liens related to the following

[1] Fla. Const., art. X, 4.

[2] § 222.01(1), Fla. Stat.

[3] Fla. Const. art. X, 4(a)(1).