After my Wife and I got married, I quit claimed my house to both our names.
What is the difference between grantee as -
Mr enipla and Mrs enipla
Mr enipla and Mrs enipla as joint tenants
and
Mr enipla and Mrs enipla as tenants in common?
Right now, the deed reads as in example one. I have been told that I should change it to either #2 or #3, but don’t really get why.
As it is, the title companies are having a hard time finding chain of title on this place, and I don’t want to do another QCD unless there really is a difference.
There are two (and sometimes three) ways for two people to hold title to real estate in most U.S. states. (I’m running late, so I’m just going to hit the high points. I’m also going to ignore land trusts and various corporate or partnership methods of taking title.) First is tenants in common. A & B own the land. Can usually be in shares other than 50-50, if so specified. Both A can sell or bequeath their respective shares to third parties. No particular immunity from creditors.
Second is joint tenants. Usually has to be 50-50. Usually is deemed to have right of survivorship (best practice is to specify this, though.) This means that the survivor automatically gets the share of the first one to die. Creditor will have some difficulties in attaching share of one of the owners who owes a judgment.
Third possible method, allowed by some states, is tenancy by the entireties. Only allowed for married couples. Similar to joint tenancy, but with better protection from creditors.
As implied, rules vary by state. The wording can matter. Also, what form of ownership is implied when the deed is silent on the issue will depend on state law. (Most states deem it to be TIC, IIRC.) How this is done can make a big difference in what happens if one of you dies, or has a judgment against you. See a lawyer licensed in your state for advice that you can rely on.
SD: Although IAAL, I’m not your lawyer. This is general information and not legal advice.
It would seem to me, as we are married and are both on the deed that joint tenants would be assumed.
Sounds to me that a good idea would be to QCD it again so that if I die first, and have a judgement against my estate, creditors can’t come after the house.
You have to consult state law. Ordinarily, if the deed does not specify, it is “tenancy in common.” However, in those states where “tenancy by the entirety” is possible, the statute usually states that if the owners are married and no tenancy is stated, it is deemed “tenancy by the entirety.”
Under common law, even joint tenants were immune from creditors against one as far as the property was concerned. There has been some cases contra, and Illinois held contra; so Illinois passed a tenancy by the entirety statute.
BTW, your subject title is misleading. A Warranty Deed is not a Quit Claim Deed. You and your wife probably acquired title by a WD, but to change the form of ownership, a QCD is proper.
Random
Joint tenancy, by definition, means the right of survivorship, and the interest of each is always an undivided 1/2 (equal).
You didn’t state what state you live in. Here’s the Illinois statutes:
So in Illinois if the deed is silent, it is tenancy in common, and tenancy by the entirety is limited to husband and wife in homestead property only and must be expressed.
You may be right. Certainly, I’m unaware of any cite to the contrary on either of these points, and do not intend to look for one.
On the other hand, I don’t claim to know the state of the law on these issues in each of the 50 states, and therefore was not (and am not) prepared to unequivocably assert that use of the phrase “joint tenants”, without more, always (with no exceptions possible) means equal undivided shares with a right of survivorship. Therefore, my version of the above statement in my response contained the word “usually”, and deeds I draft (in Illinois, as it happens) will continue to read “to A & B, not as tenants in common, but as joint tenants with a right of survivorship” in all cases where joint tenancy is the appropriate choice.
In fact, the statute you quote arguably requires something more than the two words (joint tenants), although I suspect that most courts would rule that the short version is enough to avoid tenancy in common. Why take the chance, though?
Glad to help. I cannot give you advice on your proposed course of action, but if a client came to me in my state in similar circumstances, I might remind him that the new (second) quit claim deed should include both him and his wife as grantors and grantees, given that the first QCD appears to have already conveyed some interest in the property to the wife.
I repeat my suggestion to see a lawyer in your state, especially as you report some existing problems with the chain of title. You also may want to let your lawyer know of any outstanding mortgages on the property, as a conveyance might be a technical default under your loan documents.
You’re entirely correct, Random, to use the language in the statute. Why leave anything to chance?
By the same token, enipla’sQCD to him and his wife calls in question the joint tenancy, even though the QCD reads that way. Under common law, there are four identities for a joint tenancy to exist: (1)one and the same interest; (2) accruing by one and the same conveyance; (3)commencing at one and the same time; and (4) held by one and the same undivided possession. Since Mr. enipla held title before he conveyed it to him and his wife, he (technically) did not commence his title at “one and the same time.” The proper way for him to do this is to QCD the property to a straw man (or dummy) who, in turn, will QCD the property back to Mr. and Mrs. enipla.
BTW, jnt tenancies can be held by more than two persons, but all get equal undivided interests.