Common Questions: Guess Who’s Coming To Dinner

Question: I am the co-owner of an apartment. The other owner tells me that she has put in her will that her half of the apartment goes to someone I do not like. Can she do that? Can I exclude that person from my half of the apartment?

The answer rests in what kind of ownership interest you have. When you write of her half and your half there is a mental image of the two of you making a line with duct tape down the center of the apartment and each staying on your “half”. It does not work that way.

New Jersey Statute 46:8A-5 sheds some light on the issue:
“Any apartment may be held and owned by more than one person as joint tenants, as tenants in common, as tenants by the entirety or in any other real estate tenancy relationship recognized under the laws of this State.”

Joint Tenancy, Tenancy in Common and Tenancy by the Entirety, or any other real estate tenancy relationship recognized by the State are the options in the statute. While you may have an arrangement that is “other real estate tenancy relationship recognized…” it is doubtful and very complicated. This would be a case where a lawyer would certainly have to be retained to help you sort out the problem.

Let’s look at the other three and what they mean:

Joint Tenancy – A type of ownership of real property by two or more persons in which each owns an undivided interest in the whole. In the case of joint tenancy both persons own the whole property. Using our duct tape illustration you would not be able to keep your new roommate out of your side of the apartment, duct tape or not, because they will have an undivided interest in the whole, or right to inhabit the whole property. Joint tenancy provides equal, unlimited and free access to the property in question to all parties.

Tenancy in Common – A form of concurrent ownership of real property in which two or more persons possess the property simultaneously; it can be created by deed, will, or operation of law. Tenancy in Common is similar to Joint Tenancy with one major exception. Ownership is based on the percentage of ownership or contribution. If you and your roommate each own 50% there is not much of a difference in this situation. You will need to buy out your roommate or be bought out to fix the situation, or you may agree to sell to a third party and split the proceeds by the percentage of ownership. If you go the duct tape route, you both will have the right to cross the line whenever they choose.

Tenancy by the Entirety – A Tenancy by the Entirety allows spouses to own property together as a single legal entity. Under a tenancy by the entirety, creditors of an individual spouse may not attach and sell the interest of a debtor spouse: only creditors of the couple may attach and sell the interest in the property owned by tenancy by the entirety. If one spouse passes their interest in the property pass to the surviving spouse. The husband may place a duct tape line down the middle of the apartment but then a divorce attorney will be a more immediate need than a real estate barrister.

Since you and your roommates are not married you do not have a Tenancy by the Entirety. Likely you either have a Joint Tenancy that will convert to a Tenancy in Common on the death of your roommate or already have a Tenancy in Common.

With a Tenancy in Common, no duct tape barriers, no my and her halves. If you do not want to share the apartment with the new roommate then you will have to buy them out, have them buy you out or sell and split the proceeds.

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