Page 81 - Akerman | 2016 Guide to Doing Business in Florida

for registering with the Florida Secretary of State Division of Corporations if planning to manage real
property, develop real property, or engage in similar real estate activities in Florida.

In addition, Chapter 692, Florida Statutes, sets forth certain additional statutory requirements concerning
the conveyance of real property by or to particular entities (both domestic and foreign) in Florida.

9.2 Concurrent Ownership
9.2.1 Tenancy in Common

Under Florida law, except in the case of a tenancy by the entireties (discussed below), a
conveyance to two or more persons creates a tenancy in common unless the instrument
creating the estate expressly provides for the right of survivorship. In a tenancy in common,
each cotenant owns an undivided interest and possessory right in and to the real property.
Possession is the only unity necessary for a tenancy in common. Each cotenant has a separate
estate that is freely alienable, can be attached by creditors, is descendible to heirs, and is
devisable by will. Unless otherwise agreed to by the cotenants, each cotenant is generally liable
for its proportionate share of the obligations arising from ownership of the real property, even if
only one cotenant is in possession of the property. A cotenant in possession of the property
may generally seek contribution from the other cotenants regarding payment of the
proportionate expenses. Unless otherwise agreed to by the cotenants, all rents and profits
received concerning the real property are generally to be proportionately shared by all
cotenants. Any cotenant may file an action to partition such cotenant’s common interest in the
real property.

9.2.2 Joint Tenancy with Rights of Survivorship

Under Florida law, except in the case of a tenancy by the entireties (discussed below), the
instrument of conveyance must provide for right of survivorship for a joint tenancy to be
created. Otherwise, the tenants will be tenants in common. Each joint tenant owns an
undivided interest and possessory right in and to the real property. The unities required for
creation of a joint tenancy in Florida are (a) unity of time; (b) unity of title; (c) unity of possession;
and (d) unity of interest. In the event of death of a joint tenant, the real property passes by
operation of law to the surviving joint tenant. Each joint tenant has a separate estate that is
freely alienable and attachable by creditors. A joint tenant may mortgage its interest in the real
property. A joint tenancy is converted to a tenancy in common when a joint tenant conveys its
undivided interest in the property to another person. Any joint tenant may file an action to
partition such joint tenant’s interest in the real property.

9.2.3 Tenancies by the Entireties
Only a married couple may own real property as tenants by the entireties. A conveyance of real
property to a married individual is presumed to create a tenancy by the entireties. A tenancy by
the entireties is a joint tenancy with a fifth unity, the marriage of the parties. Unlike a joint
tenancy, a tenancy by entireties includes a right of survivorship regardless of whether the
conveying instrument establishes such right, i.e., as long as the five unities are present, there is
a right of survivorship. Unlike a joint tenancy, a tenancy by the entireties may not be terminated
by one spouse without the other spouse’s consent. In addition, neither spouse can sell,
mortgage, or encumber the real property without the other spouse’s consent. Creditors
generally cannot attach property held in tenancy by the entireties unless such creditors are joint
creditors of both spouses. A tenancy by the entireties automatically terminates and becomes a
tenancy in common upon dissolution of the marriage.

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