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Buying a Home Together When you make the decision as a couple to buy real estate together, there are several legal presumptions of which you must be aware. Careful drafting by the attorney drawing the deed will ensure that you and your partner hold the property in the manner best suited to your relationship. Ownership Rights When two people who are not legally married to each other purchase property conveyed to them in a single deed, they are presumed by the laws of North Carolina to own the property as Tenants in Common. What this means is that each person owns a part in the whole undivided property. If no specific ownership information appears in the deed, the ownership is presumed to be Tenants in Common and divided equally between the owners. However, if the owners wish to have an unequal interest in the property, for example 75%/25%, this ownership must be chosen and the unequal interests specifically stated in the deed. Many couples would prefer to own their property jointly with the property ownership going to the surviving partner. This form, Joint Tenancy with the Right of Survivorship, has the advantage in that the entire property will pass to the surviving owner automatically upon the death of the other owner when it has been properly created. Unlike a will, which may be contested and must go through the probate process, a deed automatically passes the property to the surviving partner, minimizing the disruption and stress for the survivor. Joint Tenancy with the Right of Survivorship is not available in all states, but is still available in North Carolina. Couples must be aware that if they purchase real property together and the deed does not specifically state that they own it as Joint Tenants with the Right of Survivorship, then they are presumed by law to own it as Tenants in Common. The good news is that most attorneys familiar with legal issues surrounding gay and lesbian couples can easily draft and record a new deed that is properly worded to create a Joint Tenancy with the Right of Survivorship. Contracts Between Partners Unmarried couples purchasing property together may have questions regarding the ownership of the property in case of a break-up. They must use North Carolina contract law because rules relating to distribution of property of married couples are not legally applicable. How will they decide whether to sell the house, or if one partner should buy the other’s interest out? How will they agree about the price of the house or of the interest owned by one partner? If these matters are discussed and handled when the property is purchased, many potential problems can be extinguished. A simple contract between the two parties can be drafted by a lawyer experienced in real estate issues and issues faced by gay and lesbian property owners. Such a contract is private and need not be recorded at the Register of Deeds Office. Also, it is highly recommended that if one partner is making an unequal contribution to the mortgage payments, such a contract should be negotiated and agreed upon. "A Legal Guide
to Homebuying in North Carolina for Gay & Lesbian Couples" Lisa Logan is very knowledgeable about the unique legal needs of gay and lesbian couples. She has an active law practice located in Durham, NC and can be reached at: 919/688-6858 or e-mail: LMLogan@aol.com or visit her website at: www.LisaMLogan.com |
