Joint tenancy and tenancy in common are two common ways to co-own real estate in New York, particularly for unmarried owners. Joint tenancy includes a right of survivorship, while tenancy in common has no automatic survivorship. Each owner may hold an equal or unequal share, and that interest ordinarily becomes part of the owner’s estate at death unless another valid nonprobate transfer method applies. The ownership form can affect inheritance, partition rights, creditor exposure, and how the owners document mortgage, tax, and property-expense obligations.
At Avenue Law Firm, Manhattan real estate attorney Peter Zinkovetsky helps buyers, sellers, and co-owners prepare and review deeds, resolve title issues, and address co-ownership concerns. Whether you are purchasing property with a family member, spouse, investment partner, or another co-owner, choosing the right ownership structure at the outset can help reduce the risk of future ownership disputes and estate planning issues.
This guide explains how each ownership type works, what happens when an owner dies, the legal risks of choosing wrong, and how to convert or fix your deed in New York. If you need guidance on choosing between joint tenancy and tenancy in common, Avenue Law Firm can help you evaluate your options before you sign or update a deed. Call (212) 729-4090 to schedule a consultation.
What’s the Difference Between Joint Tenancy and Tenancy in Common?
In a joint tenancy, when one owner dies, the surviving owners automatically acquire that share. In a tenancy in common, a deceased owner’s share goes to whoever is named in their will, or to their heirs under intestacy law, not to the co-owners.
Under New York Estates, Powers and Trusts Law § 6-2.2, a transfer to two or more people creates a tenancy in common unless the deed expressly declares a joint tenancy. However, a deed to married spouses creates a tenancy by the entirety unless the deed states otherwise. For non-spouse co-owners, tenancy in common is the default, and joint tenancy must be spelled out.
| Feature | Joint Tenancy | Tenancy in Common |
|---|---|---|
| Right of survivorship | Yes, automatic on death | No, share passes by will or intestacy |
| Ownership shares | Must be equal | May be equal or unequal |
| Transfer of interest | A transfer of one owner’s interest can sever the joint tenancy | An owner may transfer that owner’s undivided interest, subject to any enforceable agreement |
| Passes through probate | No, for the deceased joint tenant’s interest | Ordinarily, unless another valid nonprobate transfer method applies |
| Creditor exposure | A creditor may reach the debtor-owner’s interest; enforcement or a transfer may sever the joint tenancy | A creditor may reach the debtor-owner’s undivided share |
Key Takeaway: Joint tenancy passes ownership automatically to surviving co-owners and avoids probate; tenancy in common lets each owner control where their share goes but sends that share through probate. New York treats a co-ownership deed as tenancy in common unless joint tenancy is stated expressly.
What Is Joint Tenancy With Right of Survivorship in New York?
Joint tenancy with right of survivorship is co-ownership in which each owner holds an equal, undivided interest in the whole property, and the survivors automatically take a deceased owner’s share. No probate is needed to complete that transfer.
New York courts recognize joint tenancy only when the four “unities” exist at the same time:
- Unity of time: All owners must acquire their interest at the exact same moment.
- Unity of title: All owners must take title through the same deed or legal instrument.
- Unity of interest: Each owner must hold an equal share with equal rights.
- Unity of possession: Each owner must have the right to possess and use the entire property.
If one joint tenant transfers or otherwise validly severs that owner’s interest, the severed interest becomes a tenancy in common. When three or more joint tenants are involved, the non-severing owners may remain joint tenants among themselves. New York also permits a joint tenant to sever unilaterally through a qualifying deed or written instrument, but the instrument must be recorded before the severing tenant’s death to terminate survivorship as to that interest.
What Is Tenancy in Common Ownership in New York?
Tenancy in common is co-ownership where each owner holds a distinct, transferable share, and no owner has an automatic right to another’s interest at death. When a tenant in common dies, that share passes to the people named in the will or to legal heirs under intestacy.
Shares do not have to be equal. One owner might hold 70% and another 30%, yet both keep the right to occupy and use the entire property. Ownership percentage affects each owner’s economic interest, but not each owner’s right to possess and use the property. Financial responsibilities, however, depend on the loan documents, title obligations, and any co-ownership agreement.
For non-spouse co-owners, this is New York’s default form of co-ownership. If a deed simply names two or more owners without stating “joint tenants with right of survivorship,” the law treats it as a tenancy in common. Each owner can sell, gift, mortgage, or devise that owner’s undivided interest without the other owners’ permission, subject to any enforceable co-ownership agreement and applicable lender requirements.
How Does the Right of Survivorship Work?
The right of survivorship operates automatically when a joint tenant dies. The deceased owner’s interest does not become part of the probate estate; instead, it passes to the surviving joint tenant or tenants.
To update the public record for Manhattan property, the surviving owner or owners should record the documents required by the New York City Register. If more than one joint tenant survives, the records should reflect the remaining joint owners rather than identifying one person as the sole titleholder.
The deed must expressly create a joint tenancy. New York law does not require one specific formula, but wording such as “as joint tenants with right of survivorship” clearly states the intended ownership form.
Key Takeaway: Survivorship transfers title automatically outside probate, but only when the deed expressly states a joint tenancy with right of survivorship. In Manhattan, the survivor records a death certificate with the New York City Register to update the title.
Manhattan Real Estate Attorney, Avenue Law Firm
Peter Zinkovetsky, Esq.
Peter Zinkovetsky is an experienced New York real estate attorney who represents both local and international clients. He was named a Rising Star by Super Lawyers Magazine for ten consecutive years (2015–2024), an honor given to less than 2.5% of eligible attorneys in New York State, and has since been selected to the New York Super Lawyers list for 2025–2026. He was also included in the New York Real Estate Journal’s 2018 “Ones To Watch” list. Avvo has awarded him a 10/10 rating, its highest available. He was admitted to the New York bar in 2011 and is also admitted in the U.S. District Courts for the Southern and Eastern Districts of New York.
Peter teaches continuing education courses, writes a legal blog, and has authored articles for the New York Real Estate Journal. He is frequently interviewed by the press and has been featured in Forbes, the NY Post, The Real Deal, the NY Observer, and Newsweek, among others. He holds a Juris Doctor from New York Law School and a Bachelor of Business Administration in Finance from Pace University. He focuses his practice on real estate transactions and property and business insurance.
Can Tenants in Common Own Unequal Shares of a Property?
Yes. Unequal shares are one of the defining features of tenancy in common. One owner can hold 60% while another holds 40%, or any other split the owners agree to.
Ownership percentage matters for money, not access. A 25% owner and a 75% owner both have the right to use the full property, but they may agree that each contributes to the mortgage, property taxes, insurance, and repairs in proportion to their share. Percentage also determines how sale proceeds are split and how much value passes through each owner’s estate.
How Should Unequal Ownership Shares Be Documented?
Ownership percentages should be stated clearly, ideally in more than one place. The deed can specify each owner’s fractional interest, such as “an undivided 70% interest” and “an undivided 30% interest.”
Beyond the deed, owners often use a written co-ownership or tenancy in common agreement that records each person’s percentage, financial contributions, and responsibilities. Bank records, closing statements, and proof of down-payment contributions can further support each owner’s stake if a dispute arises later.
Without clear documentation, the owners may later dispute the size of their respective interests. An owner claiming a larger share may need evidence of the deed language, the parties’ agreement, and their financial contributions. Stating the percentages in the deed and a co-ownership agreement is easier than trying to prove the intended split years later.
5 Legal Risks of Choosing the Wrong Ownership Structure
Selecting the wrong co-ownership form can affect your estate-planning goals and expose you to legal or financial issues. These are the five risks we see most often:
- Unintended disinheritance of heirs under joint tenancy. Because survivorship overrides a will, a joint tenant who wants their share to go to a child may instead see it pass automatically to the surviving co-owner. The will has no effect on jointly held property.
- Forced sale through a partition action. Under New York Real Property Actions and Proceedings Law § 901, a qualifying joint tenant or tenant in common may seek partition. If physical division would substantially prejudice the owners, the court may order a sale.
- Personal liability for the loan depends on who signed the promissory note and the terms of the loan documents, not simply on who appears on the deed or signs the mortgage. A mortgage or property-tax lien can still affect the property or an owner’s interest even when the co-owners hold unequal shares.
- Creditor claims attaching to one owner’s interest. A creditor may obtain a lien against the debtor-owner’s interest. Enforcement can lead to a transfer or sale of that interest, which may affect the co-ownership structure and can result in a later partition action.
- Disputes over unequal contributions with no written agreement. When one owner pays more of the down payment or carrying costs but the deed and records are silent, proving a larger share becomes difficult, and a court may treat the owners as holding equal shares.
Key Takeaway: The wrong ownership structure can disinherit your heirs, trigger a court-ordered sale under RPAPL § 901, or leave you liable for the full mortgage. A clear deed plus a written co-ownership agreement addresses most of these risks before they arise.
How Can You Change Tenancy in Common to Joint Tenancy in NY?
To convert a tenancy in common to a joint tenancy, all current owners generally execute and deliver a new deed conveying the property to themselves as joint tenants. New York law permits owners to convey property to themselves and others, and the deed should expressly create a joint tenancy, preferably using clear right-of-survivorship language.
All owners must consent because the change alters their rights at death. The deed is effective between the parties upon proper execution and delivery, while recording provides public notice and protects against later competing claims. For Manhattan property, the deed is recorded through the New York City Register with the required forms and fees.
What Happens to Ownership When a Co-Owner Dies?
What happens to the property depends entirely on how the title was held. The two forms produce very different outcomes at death.
If the Co-Owners Held Joint Tenancy
If the co-owners held title as joint tenants, the surviving joint tenant or tenants automatically acquire the deceased owner’s interest. That interest does not pass under the deceased owner’s will and does not become part of the probate estate.
The survivor records a certified death certificate to update the public record and confirm sole ownership. If more than two people held the property as joint tenants, the remaining joint tenants continue to hold it jointly, still with survivorship among themselves.
If the Co-Owners Held Tenancy in Common
The deceased owner’s share passes to the people named in their will, or to their heirs under New York intestacy law if there is no will. This share does not go to the surviving co-owners.
Because a tenant in common’s interest becomes part of the deceased owner’s estate unless another valid nonprobate transfer applies, transferring it may require a probate proceeding when there is a will or an administration proceeding when there is no will. The surviving co-owner may then own the property with the beneficiaries or heirs, which can lead to disputes or a partition action.
Which Ownership Type Is Right for Your New York Property?
The right choice depends on your relationship to the co-owner and what you want to happen at death. Neither form is universally better; each fits different goals.
Married couples who want automatic survivorship often hold real property as tenants by the entirety. Under New York law, a transfer of real property to spouses creates a tenancy by the entirety unless the deed expressly provides for joint tenancy or tenancy in common. Unmarried co-owners who want automatic survivorship may choose joint tenancy.
Investment partners and family members who want to control their own share, and pass it to their own heirs, prefer tenancy in common, especially when contributions are unequal. Two investors buying a Manhattan building with different capital, or siblings inheriting a home together, are usual tenancy in common scenarios. If your goal is to leave your share to your children rather than your co-owner, tenancy in common with a clear will is usually the better fit.
Key Takeaway: Choose joint tenancy or tenancy by the entirety when you want the survivor to inherit automatically; choose tenancy in common when you want to control your own share and pass it to your heirs. Unequal contributions do not “almost always” require tenancy in common. Owners may intentionally contribute different amounts while still choosing joint tenancy because they want survivorship.
Get Help from a New York Real Estate Attorney Today
Choosing between joint tenancy and tenancy in common affects who inherits your property, whether you can be forced to sell, and how much liability you carry. An incorrectly prepared or recorded deed can affect inheritance rights, create ownership disputes, or expose the property to a partition action years later. Correcting these issues after a deed has been recorded may require additional legal work and expense.
Attorney Peter Zinkovetsky and our team at Avenue Law Firm handle New York deed, title, and co-ownership matters every day, including corrective deeds, tenancy in common agreements, and conversions recorded through the New York City Register. We serve clients throughout Manhattan, Brooklyn, and the surrounding counties.
Call Avenue Law Firm at (212) 729-4090 to schedule a consultation. Our office is located at 505 Park Ave., Suite 1201 in Manhattan.
Frequently Asked Questions About Joint Tenancy and Tenancy in Common in New York
Is joint tenancy the same as tenancy by the entirety in New York?
No. Tenancy by the entirety is a survivorship form generally available to married couples, while joint tenancy is available to other co-owners as well. Tenancy by the entirety may also provide protections against certain individual creditor claims that ordinary joint tenancy does not provide.
Can I convert joint tenancy to tenancy in common without the other owner’s consent?
Often yes. A joint tenant may unilaterally sever the joint tenancy through a qualifying deed or written instrument. To terminate survivorship as to the severing owner’s interest, the instrument must be recorded before that owner dies. Creating a new joint tenancy from a tenancy in common, by contrast, requires the consent of all owners.
Does tenancy in common avoid probate in New York?
Not automatically. A tenant in common’s share ordinarily becomes part of the owner’s estate and may require probate when there is a will or administration when there is no will. However, New York also authorizes transfer-on-death deeds, which can transfer real property outside probate when the statutory requirements are satisfied. Joint tenancy and tenancy by the entirety avoid probate through survivorship.
What happens if one tenant in common wants to sell and the other doesn’t?
A joint tenant or tenant in common who meets the requirements of RPAPL § 901 may seek partition. If physical division would substantially prejudice the owners, the court may order a sale and divide the net proceeds according to the parties’ interests and any applicable accounting adjustments.
Do banks care whether co-owners hold joint tenancy or tenancy in common?
Lenders focus primarily on the borrowers, the loan documents, and the property securing the loan. A person who signs the promissory note may be personally liable under its terms, while the mortgage gives the lender a lien on the property interest described in the document. The ownership form can still affect title and the lender’s rights after an owner dies or transfers an interest.
Can more than two people hold property as joint tenants in New York?
Yes. Three or more people can hold title as joint tenants, and survivorship continues among the remaining owners as each one dies, until the last survivor holds it alone.
