In a tenancy in common, each co-owner owns a percentage of the overall real estate property, and participates in the management of the property. The co-owners can sell their individual shares of ownership in the property, and are entitled to certain tax benefits.
Tenancies in common are arrangements in which two or more persons are co-owners of a real estate property. This arrangement allows them to be able to invest in property, not as limited partners or as a legal entity, but rather as individual owners.
Operational and Tax Aspects: Tenancies in Common as a Way to Invest in Real Estate
Tenancy in common is an alternative to individual investment in a property. The co-owners in a tenancy in common are owners of a percentage of the entire property, rather than specific units or apartments, and their deeds show only their percentages of ownership. This type of arrangement offers various advantages.
- Co-owners can pool their resources and buy bigger properties with a tenancy in common.
- The tenancy in common agreement should cover all issues that could arise.
- Co-owners can take deductions for interest, taxes, depreciation, and other expenses.
Advantages of Tenancies in Common
The co-owners can combine their resources and therefore have the capacity to purchase properties that they would not be able to purchase individually. Fractional ownership in tenancies in common offers the possibility of diversifying real estate investments in more than one property, even in different parts of the country.
The co-owners control the property themselves, and do not depend on a third party to manage the property. The income generated by the property, and the expenses incurred in its management are transferred to the co-owners based on their percentages of ownership. The individual co-owners can claim tax deductions for the interest, taxes, depreciation, and other expenses related to the property, according to their percentages of ownership.
The co-owners retain the right to sell their percentages of ownership at any time. Any of the co-owners can sell their share and pay tax on the capital gain, or can defer the tax by carrying out an exchange according to section 1031 of the tax code, and reinvesting the proceeds.
A tenancy in common is distinguished from a joint tenancy in that there is no right of survivorship. The co-owners can choose who will inherit their shares of ownership in the property in the event of their death. The heir becomes a co-owner, together with the original co-owners. On the contrary, in a joint tenancy the ownership share of a co-owner who dies passes to the other co-owners.
Why Not Form a Limited Liability Partnership?
Limited liability partnerships and corporations are legal entities that offer certain advantages compared with fractional ownership arrangements, such as tenancies in common, but for tax purposes, the partners or shareholders in these entities are not considered to be owners of the real property itself, and therefore cannot claim all the tax benefits corresponding to ownership of real property, such as deductions for mortgage interest and property taxes on the real property, and the right to claim an exclusion of up to $250,000 ($500,000 for married taxpayers who file a joint return) of the gain on the sale of a home.
Did You Know?
Modern law that governs real estate in the United States has evolved from the feudal system of landholdings in England.
How Do You Form a Tenancy in Common?
In many cases, tenancies in common are formed when the seller of a property or the real estate agent decides to sell the property as a tenancy in common. In this case, the seller or agent develops the structure and the tenancy in common agreement prior to offering the property for sale on the market. Each buyer has the chance to review and approve the agreement before committing to buy a share of ownership.
In other cases, a buyer or group of buyers establish the structure and the tenancy in common agreement. An individual buyer could bring together a group of relatives or friends, use a broker to locate a building, agree on the percentages of ownership, and then work with an attorney to draft the tenancy in common agreement.
What Can Buyers Interested in a Tenancy in Common Do?
When the seller or agent has already prepared a tenancy in common agreement, the buyer should request the advice of an experienced attorney to review the agreement and to address the potential issues that could arise as a result of co-ownership of the property.
If there is no agreement and the buyer has a group of persons who are interested in co-ownership, the most efficient and economical way to establish an agreement is for the whole group to contract an attorney to draft a tenancy in common agreement specifically adapted for the property and the particular interests of the buyers.
Then, each participant can review the agreement with his or her own attorney and accountant and bring their comments before the group for discussion and agreement in order to prepare a final version of the agreement.
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The Tenancy in Common Agreement
The tenancy in common agreement should divide the property into “individual” portions and “group” portions, with respect to rights of use and responsibilities for maintenance. It should establish the rules that govern the use of the property by the co-owners, such as policies regarding pets, noise, parking, furnishing of the apartments or rooms, and procedures for enforcing these rules.
The agreement should include a description of the financial obligations of the co-owners, including initial deposits, reserve accounts, shared mortgage loans, taxes, and responsibilities for the maintenance of common areas and other expenses. There should be a formula for determining the monthly payment that each co-owner must make, and how any adjustments to that amount will be determined.
There should be procedures for holding meetings and making decisions. The way in which the property is to be managed should be described, including how tenants will be charged, and how invoices from vendors, suppliers, and contractors and other expenses will be paid.
The agreement should include provisions for regular reports accounting for all expenses incurred and their reimbursement. These provisions should include a definition of what constitutes breach of the obligations of the co-owners, and the actions to be taken, including procedures for resolving conflicts.
The agreement should address the sale of shares of ownership, the approval of prospective new buyers on the part of the group, and the rights of first choice. There should be a policy on the actions to be taken in the event of the death, bankruptcy, or insolvency of any of the co-owners.
The agreement should be sufficiently complete so as to cover all issues that could arise. It should be well organized, and should be drafted in language that is clear and easy to understand, avoiding ambiguity. It should also be sufficiently durable so that it can still apply in cases of changes in the composition and plans of the co-owners, without having to renegotiate the agreement.
Determination of the Shares of Ownership in a Tenancy in Common
In some groups the co-owners will all have equal shares, while in others the shares may be determined based on the relative value, or the square footage of the areas of the property assigned to each co-owner. Many times, these percentages are used to allocate common expenses, such as insurance, administration, maintenance, and upkeep, among the co-owners.
The percentage of ownership in the overall property does not control the resale prices the co-owners can charge, or the distribution of earnings in the event the entire property is sold. The resale price charged by an individual co-owner depends on that owner and the buyer, and is not determined based on the ownership percentage or an appraisal of the entire property.
In the event the entire property is sold, the distribution of the earnings should be based on an appraisal of the market value of each co-owner’s share, according to the quality and specific aspects of his or her assigned area.
Financing Tenancies in Common
Co-owners who share an apartment building, for example, through a tenancy in common, could share a loan guaranteed by the entire property. The portion of the loan payment that corresponds to each co-owner could be determined on a prorated basis, according to each co-owner’s portion of the original purchase price, less the down payment each co-owner makes; that is, each co-owner’s portion of the amount financed.
The respective portions of the original purchase price could be based on the relative values of the units assigned to the co-owners, or in some other agreed-upon manner. The co-owners would contribute their shares of the mortgage payment, these amounts would be deposited in a bank account set up for the group, and from this account the payment to the lending institution would be made.
Various banks have introduced programs in which each co-owner can have his or her own loan. These loans are guaranteed by each co-owner’s percentage share of ownership in the property. The seller of the property could also grant mortgage loans, with an underlying loan it took out prior to forming the tenancy in common.
In the case of a group loan, it is necessary to control the risk that the breach on the part of one of the co-owners could adversely affect the other co-owners.
In practice, this risk is managed by researching the background and credit score of potential co-owners before allowing them to join the tenancy in common group; requiring a similar evaluation of the new buyer, each time a share of ownership in the tenancy in common is sold; making all loan payments from the group’s bank account rather than having each co-owner make his or her share of the payment directly to the bank or other lending institution; and keeping reserve funds that can be used to make payments until the share of the co-owner who is not meeting his or her payment obligations can be sold.
For a group loan, it is also important that the loan can be assumed, so that a new co-owner can join the rest of the co-owners as a new co-signer of the existing loan, assuming the same obligations the seller of the ownership interest had. It is advisable to have a loan that allows partial assumption.
In the case of individual financing of the ownership shares in a tenancy in common, each co-owner would sign a separate promissory note, guaranteed only by the corresponding portion of ownership. In the case of non-payment by that co-owner, the lender could foreclose on only the portion corresponding to that co-owner. The lender could then sell that ownership share and a new buyer could acquire it. The other co-owners in the tenancy in common would not be affected.
In a tenancy in common there are certain guidelines to follow in the way in which expenses are distributed among the co-owners, and in the administration of the property.
Real Estate Taxes
The real property is not legally divided in a tenancy in common and real estate taxes are determined based on just one appraised value for the entire property, so the group of owners will receive just one charge for taxes instead of separate accounts for each co-owner.
In the majority of cases, the tax is allocated to the co-owners based on the amount each one paid for their share of ownership. Later, if there are tax increases, it needs to be determined how the additional amount will be allocated, as follows.
If there is a tax increase due to the resale of one of the co-owner’s shares in the tenancy in common, the purchaser of that share should pay the additional amount. The resale by one of the co-owners should not increase the tax burden on the other co-owners.
When the owner of the entire real property decides to sell some shares of ownership in a tenancy in common, but retains a share of ownership in the property, that person’s share of the real estate taxes should be based on the appraised value before the sale of shares to the co-owners, which in effect means that his or her tax burden on the overall property will be reduced by the amount of tax allocated to the portion of the property sold, and the purchasers will be responsible for their prorated share of the tax.
When the tax increases due to an increase in the appraised value as a result of some type of improvement, the co-owner who made the improvement should be responsible for the increase in the tax.
When the tax increases due to an increase in the tax rate, or a reappraisal of the value of the entire property, that cannot be assigned to any co-owner in particular, the increase should be allocated to all the co-owners based on the percentages derived from their original purchase prices and any improvements made up until that time.
Individual Expenses and Shared Expenses
When the tenancy in common involves a building, expenses should be separated among individual expenses and shared or common expenses.
Individual expenses correspond to the expenses incurred within the specific units that belong to the owners, for maintenance and improvements, personal property insurance, and utilities, such as electricity and gas that can be measured and charged separately. The owners should pay these expenses individually.
Shared expenses include payments of installments on the mortgage loan, when there is a group loan; insurance that covers the whole building; maintenance and improvements in common areas; administration; shared utilities, such as electricity for lighting in public areas and for elevators; and trash removal.
These expenses should be paid through a group bank account, using a system of monthly charges to the co-owners. The co-owners make monthly payments to the group account based on their percentage of expected common expenses. The use of reserves is common for financing expenses that are paid semi-annually or annually, such as taxes and insurance, and to cover unforeseen expenses and investments, such as major repairs or the replacement of equipment.
Decision-Making and Administration in a Tenancy in Common
In tenancies in common where there is a small group of co-owners, all decisions could be made based on a vote by the co-owners. Typically, day-to-day decisions are made based on a majority vote, and more important decisions, such as mayor repairs or improvements, or changes in the rights of use or in the distribution of expenses, are made by unanimous vote.
In tenancies in common with a large group of co-owners, it may not always be practical to call a meeting each time a decision needs to be made. So routine operating matters are often handled by administration councils or committees, the members of which are selected by vote. Major decisions would normally require a majority or unanimous vote by all the co-owners, in a special meeting.
Tenancies in common allow the co-owners to take advantage of the same tax benefits as an individual owner would have.
Co-owners can take a deduction on their individual income tax returns for mortgage interest and taxes on the real property, according to their percentage of ownership. If the property is held by a co-owner as an investment or for the production of income, a deduction can also be taken for depreciation and other expenses related to the co-owner’s participation in the property.
Exclusion of Gain on the Sale of a Home
When a co-owner sells a home, such as an apartment or condominium, that forms part of a tenancy in common, the gain on the sale of up to $250,000, or $500,000 for married taxpayers filing a joint return, can be excluded from taxable income, provided the requirements for this exclusion are met. The co-owner must have been the owner of the home and must have lived in the home as his or her principal home for at least two of the last five years.
When a co-owner sells a share in a tenancy in common that was held for investment or for the production of income, such as rent, the gain on the sale could be subject to a special capital gains tax rate.
Section 1031 Exchange
A co-owner who sells his or her share in the tenancy in common may be able to defer the tax on the gain by reinvesting the proceeds from the sale in the purchase of another real property, in a like-kind exchange according to section 1031 of the Internal Revenue Code.
In general, when property that is used in a business or held as an investment is exchanged for the same or similar property, according to section 1031 no gain or loss is recognized on the exchange. In effect, the tax is deferred until the replacement property is sold or disposed of. Generally, real properties are considered to be similar, so a share in a tenancy in common, since it is considered to be ownership of real property, could qualify for this treatment. It should be noted however, that real property in the United States and real property located outside the country are not considered to be similar for these effects.
If as part of the exchange, money or goods that are not similar are also received, a gain would be recognized for the money and the value of the other goods received.
When acquiring a share in a tenancy in common, it is important that it be classified as real property, and not as an interest in a partnership, because section 1031 specifically excludes partnership interests from the possibility of deferring taxes on an exchange.
Kevin Hagen, Born in Minnesota, USA; studied Business Administration – Accounting, graduating and obtaining CPA license. Worked in corporate accounting environments, eventually becoming a technical translator while living in Chile.