Florida law recognizes a type of property ownership called "joint tenancy," and a joint tenancy can be created by quitclaim deed. To create a legal quitclaim deed for joint tenants with rights of survivorship under Florida law, you'll need to make sure the document contains the right language. You'll also need to sign the deed before two witnesses and a notary; then you must record it in the county where the property is located.
You can transfer property into a joint tenancy in Florida by using a quitclaim deed. You can download deed forms online, prepare your own or have an attorney draft it for you. Once it's prepared, you'll need to sign the deed in front of two witnesses, plus a notary, and record the signed deed with the recorder of deeds for the property's county.
What is a Deed?
Generally, a deed is a document that shows ownership of real property, which includes land and buildings. If you buy a house, you receive a deed from the seller, and the deed transfers the ownership from the seller to you. Most home sales involve warranty deeds, which are deeds that transfer clear title and warrant that the seller owns the property. Before the sale closes, a title company runs a search to find out if the property is encumbered by mortgages, tax liens, judgment liens or any other types of liens. If there are encumbrances, they must be paid off and removed before you can transfer by warranty deed. As the buyer, if you receive a warranty deed but later find out the property was still encumbered, you could sue the seller and make him pay it off.
What is a Quitclaim Deed?
A quitclaim deed is a deed that only transfers whatever rights to the property you have. Quitclaim deeds make no warranties whatsoever.
If you own a house with 10 other people in equal shares and transfer the property using a quitclaim deed, you're transferring 10 percent. If you own a house with $100,000 in mortgages and liens and you quitclaim that property, the recipient is getting the property with all those liens still attached.
If someone does not actually own a property but believes he does, and he executes a quitclaim deed transferring his ownership in the property to you, you're receiving an interest in exactly what he has, which is nothing.
Types of Property Tenancies
If you own property with someone else, the type of ownership you have together is known in legal circles as "tenancy." Laws differ from state to state about the types of tenancies available. In Florida, real estate owned by two or more people is owned either as tenants in common, joint tenants or tenants by the entireties.
Tenancy by the entireties can only be held by a married couple, while tenancy in common and joint tenancy can be held by anyone. Tenancy by the entireties and joint tenancy, however, include survivorship rights, while tenancy in common does not.
Tenancy in Common: the Default Tenancy
Under Florida law, a deed that transfers property to two or more people automatically creates a tenancy in common unless the deed language specifies otherwise. Tenants in common own the property in shares, and the other tenants have no rights to your share. If you and your brother receive a deed transferring 25 percent of the property to you and 75 percent to him, and he dies, his 75 percent share becomes part of his estate, and his heirs will then be the owners.
If you want your quitclaim deed to grant a joint tenancy, you'll need to use specific language.
What is a Joint Tenancy with Rights of Survivorship?
Joint tenancy is a tenancy in which the owners of the property own the property with rights of survivorship. If one owner dies, the other owners inherit her interest automatically. Using the example above, if you own property with your brother 25/75 and he dies, but your tenancy is a joint tenancy with rights of survivorship, his 75 percent interest automatically passes to you upon his death.
Does Florida Law Allow Joint Tenancy?
Florida law does allow for joint tenancy with rights of survivorship. However, for a deed to grant a joint tenancy, the deed must contain specific language indicating that the tenants will own the property as joint tenants with rights of survivorship. If the language is not there, the deed grants a tenancy in common, regardless of what was intended.
Granting a Joint Tenancy via Quitclaim Deed
A quitclaim deed is a good way to add someone to a property or change the type of tenancy if circumstances change. In fact, quitclaim deeds are frequently used for inter-family property transfers to change the way properties are owned.
You can use a quitclaim deed, for example, to convert a tenancy in common into a joint tenancy. To do so, you and your co-tenant can quitclaim the property from yourselves as tenants in common to yourselves as joint tenants with rights of survivorship.
To illustrate, say you and your brother own property together. The original deed states that you own 25 percent and he owns 75 percent. It has no survivorship language. Now, your brother wants you to own the property with him 50/50 as a birthday gift.
You can use a quitclaim deed to 1) change the tenancy to a joint tenancy and 2) change the ownership interest percentages. You and your brother can execute a quitclaim deed with yourselves as grantors and as grantees, and the deed can state that the transfer is equal shares as joint tenancy with rights of survivorship.
Joint Tenancy vs. Tenancy by the Entireties
A tenancy by the entireties is like a joint tenancy, except that only a married couple can hold property as tenants by the entireties. The other main difference is that tenants by the entireties own an undivided interest in the whole, and one spouse cannot transfer away her interest without the other spouse's consent. Further, if one spouse owes money to a creditor but the other spouse isn't obligated on that debt, the creditor cannot use the property to satisfy its judgment.
This protection against creditors of one spouse is one of the great benefits of tenancy by the entireties, but it isn't available to joint tenants. A joint tenancy can be severed (or partitioned) by a creditor with a judgment against one owner.
Recording the Quitclaim Deed
Once the deed is completed, the grantor must sign the deed in front of two independent witnesses and also in front of a notary public, who will need to stamp the document as notarized. The grantee must then record the deed. If you have received property through a quitclaim deed, take the executed deed to the recorder of deeds for the county where the property is located. You'll pay a recording fee to the clerk, who will stamp it recorded and return a copy to you.
Joint Tenancy Deed Forms in Florida
You can find examples of quitclaim deeds online by running an Internet search for Florida quitclaim deed forms. You can also obtain blank forms at the county clerk's office or on the clerk's website. For instance, Brevard County has forms online, including quitclaim deeds. You can then either type or write by hand the terms to include in the deed.
You can also pay an attorney to prepare the deed for you. Many real estate attorneys will prepare deeds and allow you to sign in their offices with a notary and witnesses at the ready, usually for a flat fee.