19.30 Title to Real Property

19.30.1

In General

 Tenancy by the Entirety:

  • Is not recognized in South Carolina.  A deed to a husband and wife creates a tenancy in common.

Tenancy in Common:

  • An undivided interest in real property held by two or more people is recognized in South Carolina and is called a tenancy.

Joint Tenants with Right of Survivorship:

Section 27-7-40 of the Code of Laws of South Carolina, effective August 17, 2001, provides for the clarification of the law relating to joint tenancies and the incidents of ownership thereof.

19.30.2

Creation of a Joint Tenancy with the Right of Survivorship

Ownership of real property as a joint tenancy does not automatically give rise to survivorship rights in the property. Whether survivorship exists in a joint tenancy depends upon the wording in the deed creating the estate.  Section 27-7-40(a) provides language that will conclusively create a joint tenancy with rights of survivorship. The section provides that, in addition to other methods for the creation of a joint tenancy, the names of the grantees in a deed, followed by the words "as joint tenants with rights of survivorship, and not as tenants in common" is effective to create the estate.

 If an individual was in title and wanted to create a joint tenancy in the property with another person, at common law, it was necessary to for the individual to create the estate through a conveyance to a straw person. This requirement was eliminated by a 1996 amendment to Section 62-2-804. Therefore, an individual may create a JTWRS by simply conveying as follows:  From "A" to "A and B" as joint tenants with the right of survivorship, and not as tenants in common.

19.30.3

Incidents of a Joint Tenancy

The statute specifies how property held as properly created joint tenancy would pass upon death of one of the joint tenants.  If the deceased joint tenant is survived by only one joint tenant, the entire interest of the deceased joint tenant vests in the survivor. If the deceased joint tenant is survived by more than one joint tenant, the interest of the deceased joint tenant vests equally in the surviving joint tenants. Under Section 62-2-804(b), the surviving joint tenant(s) may, following the death of a joint tenant, file a certified copy of the death certificate of the deceased.  Such a filing is conclusive that the joint tenant is deceased and the interest of the deceased has vested in the surviving joint tenant(s).

The interest in real estate held in joint tenancy may not be encumbered by a joint tenant acting alone without the joinder of all of the joint tenants. Therefore, one joint tenant may not mortgage his or her interest acting alone.  Presumably, this would apply to involuntary liens against a joint tenant.  Apparently, a judgment against one joint tenant would not attach to the property unless and until the property passes to the judgment debtor by the death of the other joint tenant(s).

The Code provides that any joint tenancy held by a husband and wife and no other joint tenants is severed by an order dissolving the marriage and vests interests in both parties as tenants in common.