Illinois Real Estate Laws on Joint Tenancy

By Jill Stimson
The Illinois Joint Tenancy Act provides the statutory basis for rights of survivorship between joint tenants.
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Codified in Chapter 76 of the State of Illinois Compiled Statutes, the Illinois Joint Tenancy Act provides the statutory basis for real estate conveyances. According to the Joint Tenancy Act, owners may own property as joint tenants when the written legal deed appropriately conveys title with a "right of survivorship." Although the laws of real property and home ownership vary across jurisdictions, there are common features of home ownership and joint tenancy among jurisdictions.

Fee Simple Ownership

In order to understand the legal terms describing methods of home ownership, a brief introduction in real estate law is necessary. A common law term arising from feudal Europe is "fee simple" ownership of real property. Feudal owners held estates and transferred ownership to those fees in exchange for services rendered. The fee simple ownership conveyed as a lifetime conveyance; and upon the tenant's death, the estate simply reverted to the feudal landowner. Today, fee simple owners may own property in "fee simple" without a reversion after the tenant's death. The property passes to the owner's heirs through probate.

Tenancy in Common

A tenancy in common occurs when property conveys to owners who each own an undivided share of real estate. Unless the deed specifies otherwise, each tenant will own an equal interest. For example, Sam and Sara will each own a 50 percent share of the property, unless expressly stated in the legal conveyance. Upon Sam's death, Sam's heirs will inherit Sam's half of the property while Sara retains her ownership.

Joint Tenancy

Tenants who own property together as joint tenants typically have an undivided legal interest in the entire parcel of property similar to the tenants in common. However, if one owner predeceases the other, the decedent's property interest conveys to the living owner. There are no rights to heirs upon death and the remaining owner retains ownership to the entire estate. Tenants by the entirety exist between husband and wife in some states who own as joint tenants with rights of survivorship, including Illinois.

Severing Joint Tenancy

If one joint tenant transfers his share to a third party, then the joint tenancy automatically terminates and results into joint tenants owning property as tenants in common, ending the joint tenancy. The Illinois Joint Tenancy Act clarifies the legal rights of joint tenants to have unfettered use and enjoyment of the entire property interest without an ownership allotment (compared to tenancy in common). Husbands and wives may own as tenants by the entirety if the legal deed conveys the property interest with language expressing the intent to hold title with survivorship rights. According to the Illinois Joint Tenancy Act, the written deed conveying the property must expressly include the written intent to pass the property to joint tenants with the attached right of survivorship; and without the express intent, tenants are deemed to hold the property as tenants in common without a right of survivorship. If spouses dissolve their marriage, then under the act, the legal conveyance automatically reverts to a tenancy in common with no subsequent rights of survivorship.