Eric P. Feichthaler

Mr. Feichthaler,

Several years ago, a friend of mine and I purchased a property, where we held title as Joint Tenants with Rights of Survivorship. She paid in 20%, and I paid the rest. I have lived in the property since then, and paid all of the bills. The property has since increased in value, and now my friend is not being so friendly, requiring 50% of any sales price. She also said she is considering transferring the property to her son. Can she do that? What would happen if I died, would it all go to her son?

— Claire J.

Dear Claire,

I am sorry to hear about this situation. Many people enter into a purchase like this with a friend thinking a dispute could never happen, but money has the tendency to create disagreements never contemplated.

First, I assume from the above you have no written agreement re-garding rights and re-sponsibilities for the property. Whether property is held as tenants in common, joint tenancy or a corporation or LLC, it is vital that there is a written agreement detailing the ownership of the property.

As of now, if the property is held as Joint Tenants with Rights of Survivorship (“JTWROS”), if one of you died, the surviving owner would own 100%. Based on what you have written, I don’t believe this is what is intended. Under Florida law, if the other owner, you, attempts to transfer the property to someone else, this will serve to break the joint tenancy, and convert the ownership to a “Tenancy in Common.” This means that each the owners has separate 50% interests. If one of the owners died, that 50% would go to their heirs, rather than the other owner. Again, this is not the desired outcome for you. Florida law assumes that jointly held property such as this are owned equally, regardless of who put in what funds.

Both owners have a responsibility for property taxes and other expenses, but if you lived there solely during that time, you may not be able to recoup some expenses. Either owner can file for a partition action for a forced sale, and make claim for expenses made on the other owner’s behalf.

You will want to seek legal advice to your specific situation. Ideally, you will reach an agreement with the other owner to buy them out or a reasonable agreement in sharing the proceeds from the sale. If that cannot be done, you may want to move to deed your interest to yourself as tenant in common, so that if you died, the property would not pass 100% to your other owner. Again, there are a lot of considerations, so obtain advice before proceeding.

Eric P. Feichthaler has lived in Cape Coral for over 35 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, Cape Coral Museum of History, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 20 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator. He can be reached at eric@capecoralattorney.com, or 239-542-4733.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.