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Changing from Joint Tenancy to Tenancy in Common

Discussion in 'Joint Ownership' started by Sigep846, May 3, 2019.

  1. Sigep846

    Sigep846 Law Topic Starter New Member

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    Jurisdiction:
    New Mexico
    I am trying to figure out if Quit Claiming property that is jointly owned in Eddy County New Mexico can be done without a straw man in order to convert from joint tenancy to tenants in common. I have read that the modern trend is to allow someone to unilaterally break the joint tenancy by quit claiming property to themselves to make it a tenancy in common. However some jurisdictions make you QC to a 3rd party who immediately QCs it back to the original owner to convert it.

    My questions are:

    1. Has anyone in NM had someone deed property to themselves in order to break the joint tenancy?
    2. Can QCing their share of the property to a living revocable trust sever the joint tenancy and convert to tenancy in common? I understand you can't will the property that is jointly owned, but if it is retitled prior to death?

    Thanks for any help provided.
     
  2. zddoodah

    zddoodah Well-Known Member

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    I've never heard of such a thing. Where did you read that, and what jurisdictions require this?

    There's no conceivable way that anyone here could intelligently answer this question in the negative, so that means the only possible intelligent answer is maybe, possibly or probably.

    This question makes no sense without any context and without a clear antecedent for the pronoun "their."

    As phrased, this is incorrect. "Jointly owned" simply means that the property is owned by more than one person; it says nothing about the manner of joint ownership. What you likely intended is that, where two or more persons own property as joint tenants with the right of survivorship, the property is not part of the probate estate of the owner who dies first and, therefore, would not be subject to the provisions of such person's will of the applicable intestate law.

    Not really sure what this means, but the manner in which the joint owners hold title at the time of death of the first to die is what matters.
     
  3. flyingron

    flyingron Active Member

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    I'm sorry Zig, but New Mexico is different.

    If a married couple holds property in NM, no matter WHAT the deed says about joint or common tenancy, the property is COMMUNITY PROPERTY and goes to the surviving spouse.

    The scheme the original poster is trying won't work. While you can break the tenancy by transferring your interest to someone else, it gets restored as community property when you get it back.

    The original poster is going to need to explain why they think they need a tenancy in common.
     
  4. Zigner

    Zigner Well-Known Member

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    I fixed it for ya ;)
     
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  5. zddoodah

    zddoodah Well-Known Member

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    It's worth pointing out that the original post says nothing about the joint owners being a married couple.
     
  6. Tax Counsel

    Tax Counsel Active Member

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    Property law tends to be some of the most archaic law we have. And unless they practice in that area, a lot of lawyers forget much of what they learn about those archaic rules after they get out of law school. I myself am certainly no expert in the details of those lesser known rules. :D

    But this particular part of it I am a little familiar with. Under old English common law it was not possible to transfer an interest in property to yourself, i.e. a deed conveying the same interest from John Doe to John Doe. The idea of such a transfer when the property is owned as joint tenants is to break the unities necessary to form the joint tenancy and convert it to a tenancy in common. But if that cannot be done due to that old common law prohibition on direct transfers then a straw person had to be used to get around that. I do not know what states still cling to that old English common law concept; it has been dying out. For example, the Colorado Supreme Court eliminated that in 2004. See Taylor v. Canterbury, 92 P.2d 961 (2004). You'll find some discussion there of that old common law rule.
     
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  7. Sigep846

    Sigep846 Law Topic Starter New Member

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    I guess I need to be more clear. There is no scam going on here. Two sisters bought the property together, so therefore the marriage issues don't apply. They have property in joint tenancy with the rights of survivorship and one party wants to convert it to a tenancy in common.

    According to the research I have done, I have came to the same conclusion as Tax Counsel above; that most states (but not all) are veering away from common law practice and allowing you to unilaterally break the unities by deeding the property to yourself. I just can't find anything that is specific to New Mexico.

    My hope was to find someone on here who has had experience with deeding a property to a living revocable trust to break those unities.

    Thanks for the case law, Tax Counsel.
     
  8. zddoodah

    zddoodah Well-Known Member

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    I suggest you confer with a local real estate attorney.
     

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