Many people own a house jointly with their spouse – or partner, friend, or family – often as joint tenants with rights of survivorship (“JTROS”). This means the couple owns the house together equally. If one of them dies the other retains full ownership automatically. The default in NH is to own property as “tenants in common” meaning each person has a separate and distinct share of the same property. The addition of the specific language “as joint tenants” or “as joint tenants with rights of survivorship” to the deed is required to override the default. This is true for residential or commercial real estate.
Interest and Ownership
As tenants in common, one person can sell their interest in the property without affecting the other’s interest. However, co-owners are not allowed to do anything with the other owner’s interest. Each owner has a specific amount of ownership in the property. The amount of ownership is usually equally split among all the owners. Additionally, each owner has equal rights to the full use of the property. If a co-owner dies, their share of the interest in the property gets passed on to their heirs. The remaining co-owner would then own the property together with the heirs. If there are multiple heirs, and the interest is not devised by a will or trust, then each of the heirs would get an equal portion of the original interest. This can mean that a commercial property can be owned in part by someone unrelated to the business.
As JTROS, neither party can sell their interest in the property without affecting the interest of the other owner. This is because each person in the JTROS owns the property as a whole. To sell the property requires consent of both owners or a valid Power of Attorney for one to act on behalf of the other. The property does not pass to heirs if only one owner dies; the surviving owner retains full title in their name. A death certificate should be recorded in the Registry of Deeds in the county where the property is located. A will or other estate planning measures cannot counteract a joint tenancy’s right of survivorship.
In either form of joint ownership one owner cannot take out a mortgage on the whole property without the other owner’s consent. A tenant in common may be able to take out a mortgage on their own interest in the property without the co-owner’s consent. A joint tenant may also be able to mortgage their own interest but would require the other joint tenant’s consent. Any owner of record is liable for tax liens and all owners are affected by a foreclosure. If one co-owner did something to jeopardize another’s interest there could be grounds for a lawsuit.
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