May 1, 2025
This article is a product of the Virginia State Bar Real Property Section.
The way to own real estate is called “tenancy,” and the following are the most common tenancies in Virginia. What is selected depends on how many people are buying the property. When making the choice, the attorney will put it in the deed. It is a good idea to let the attorney preparing the deed know the tenancy in advance. The attorney preparing your deed or another attorney can answer your questions regarding these options.
- Tenants by the Entirety with the common law right of survivorship
This is only available to people who are married to each other. The important aspects are that it automatically transfers the property to a surviving spouse in the event of an untimely death, and it protects the property from individual creditors (though not necessarily from joint creditors). It is Irecommended for married couples.
- Joint Tenants with the common law right of survivorship
This is recommended for couples who are not married to each other but who are buying a home together, and for family members buying together. An important aspect is that it automatically transfers the property to a surviving owner or owners in the event of the untimely death of one of the owners. Percentages of shares are owned equally.
- Tenants in Common
This is recommended for investors or for people who want to own their shares of the property separately without survivorship. When one of the tenants in common dies, that share will go to the estate and not to the co-owner(s). The percentages of shares can be uneven. The attorney must be notified of what percentage each party wishes to own.
- Sole Owner
If buying the property alone, then this will be the option.
- Living Trust
If an estate plan allows the owners to own property in a trust, this information needs to be included in the contract to buy the property. The owners should alert their real estate agent, settlement agent, attorney, and lender. They should also be prepared to provide an abstract of the trust or a copy of the trust itself.
- Others
A business, such as a corporation or LLC, or a tax-deferred exchange, should work with a real estate agent, settlement agent, or attorney, and a lender. They all need to be aware so that documents are prepared correctly and the proper people are notified.