Article Scope: This article will discuss (1) the process for removing an ex-partner (spouse, boyfriend, girlfriend, or partner) or yourself from title to a piece of real property (residential home, commercial property, and land); (2) how any equity in the real property should be split; and (3) how the remaining loan or liens will be treated.

Disclosure: This information is provided for educational purposes only and cannot be construed as legal advice or to create an attorney-client relationship. You should seek legal advice from a qualified attorney to determine whether and how your specific facts apply to a specific area of law.

Summary of Real Property Interest

Determining who owns real estate, how to take control of it, or how to remove someone from a chain of title can be simple or very complex. This article will discuss real property ownership rights in detail, but here is a short summary.

Real estate comes with rights and obligations. Agreements for ownership and use of real estate must always be in writing to protect your rights. Such agreements are often between spouses, family, friends, business partners, tenants, and others. Sometimes, individuals not on the deed/title have ownership or other legal or equitable rights to real estate making them co-owner.

If a spouse, partner, family member, or other joint owner has some legal or equitable interest in a piece of real estate, they generally have the right to live on or possess the property with all other owners. They must also be paid proportionally for any rental or other income from the real estate.

At some point use, ownership, or relationships become difficult or end. Sometimes a spouse or other joint owner’s goals or desires don’t aline. One joint may wish to hold, subdivide, develop, or sell the property against the wishes of other owners. During this time, parties may need some clarification of their rights or want to access their equity. Whatever the case, the solution almost certainly requires an attorney and takes the form of a buyout, refinancing, subdivision of land, or a sale to a third party.

If any joint owner wishes to exit the joint ownership, they must first agree and transfer that interest in writing to you or someone else. Until the transfer or sale is finalized, the joint owners cannot be excluded from the property. Upon a sale, all joint owners receive payment proportional ownership interest. Failure to correctly calculate and distribute proceeds from a sale will likely have expensive legal consequences.

Where spouses or partners are both on title/deed, typically, a sale or transfer isn’t too complex. Other family, friend, or joint ownership agreements are often much more complex with many individuals included on and off the deed. Ownership percentages or ratios can be obscure, especially in inheritance. No matter the case, a qualified real estate attorney can draft, execute, and record a deed reflecting the correct ownership percentages and new owners.

Where joint owners can’t agree on fair use, possession, a sale price, or a subdivision of land an attorney, mediator, or court may helpful to resolve the conflict. If no resolution can be achieved, a forced sale or subdivision may be required.

If you are concerned that someone may be a legal or equitable title owner, you should seek legal counsel before taking any steps toward the transfer, sale, or distribution of the property or equity.

Background on Ownership and Rights

Our modern concept of real property ownership has roots in England, and ownership originated through war, conquest, and treaties. Since the founding of our country, ownership/title to land has been obtained from the government. The government originally gave individuals legal and equitable ownership (or “title“) to land through a document known as a deed. The government has since kept a record of all transfers by deed (the “Chain of Ownership” or “Chain of Title“) in the county where the land is located (the “County Recorder’s Office”). An owner on this county record is known as a “registered owner,” “owner of record,” or “legal title holder.” Registered owners own all property interests and rights to benefit from the property forever, or until the rights or interests are given away by deed or taken back by the government.

Rights and Interests in Real Property

Ownership of Real Property Generally

Real property/real estate (land and buildings) can be owned/held by one or more individuals or entities. Real property interest holders are people or entities withholding any right(s) to a specific piece of real property. Interest holders are generally divided into two classes: (1) Owners, both legal owners and equitable owners (i.e., those with rights to benefit from and use and sell the real property), and (2) everyone else (those with limited rights). We will discuss the ownership of spouses and partners as equitable owners in more detail below.

Types of Ownership in Real Property

Legal Owners vs. Equitable Owners

Real property ownership is generally divided into two categories (1) legal owner and (2) equitable owner.

Legal title owners are the individual(s) on the deed that is recorded at the County Recorder’s office. They have all rights to the property until given away or sold. Only legal owners can transfer the property by deed. If you are on title, then you are almost guaranteed to have a right to live in the home or receive the equity or profits in the home upon the sale. If you are on title, a buyer must obtain a deed with your signature to become the new legal title owner, otherwise, you remain the legal owner of the property. Trustees are considered legal title holders.

Occasionally, an owner may not be on the deed/title but may still be an “owner” or is said to have an “equitable ownership interest” in the real property. Equitable title owners are those owners not on the deed with an “unrecorded interest” in or rights to use or benefit the property based on an agreement between them and the legal title holder. They can sell or transfer these rights. They can also file suit to enforce them and stop a sale.

Joint Ownership/Co-Ownership of Real Property

In Utah, as in many other jurisdictions, there are three main types of co-ownership for real property: tenants in common, joint tenants, and joint tenants with rights of survivorship (JTWROS). Here’s a breakdown of the differences between them:

1. Tenants in Common:
   • Tenancy in common is a form of co-ownership where two or more individuals each own a distinct, undivided share of the property.
   • Each co-owner can have different ownership percentages; it does not have to be equal shares.
   • If one co-owner passes away, their share of the property will be passed on to their heirs or beneficiaries according to their will or the laws of intestate succession. There is no right of survivorship.
   • Co-owners can sell, transfer, or mortgage their individual shares without the consent of the other co-owners.
   • Tenants in common are free to occupy different portions of the property simultaneously.
2. Joint Tenants:
   • Joint tenancy is a co-ownership arrangement where two or more individuals each own an equal share of the property.
   • Joint tenants must acquire their interests at the same time, through the same deed or instrument.
   • Each joint tenant has the right of survivorship, which means that if one joint tenant passes away, their share automatically passes to the surviving joint tenants. The last surviving joint tenant becomes the sole owner of the property.
   • Joint tenancy requires four unities: unity of time (acquiring ownership at the same time), unity of title (through the same deed), unity of interest (equal ownership shares), and unity of possession (equal right to possess the whole property).
   • Joint tenants cannot sell or transfer their shares without breaking the joint tenancy. Doing so would convert it into a tenancy in common.
3. Joint Tenants with Rights of Survivorship (JTWROS):
   • JTWROS is a specific type of joint tenancy commonly used to avoid probate and ensure a seamless transfer of ownership upon the death of a joint tenant.
   • Like regular joint tenancy, each owner has an equal share of the property and the right of survivorship.
   • When one joint tenant dies, their share immediately passes to the surviving joint tenants, and the property remains wholly owned by the surviving joint tenants.
   • JTWROS shares the same four unities requirement as regular joint tenancy.

These joint ownership types are more specifically defined by Utah statutes. See Utah Code § 57-1-1. It’s essential to clearly specify the type of co-ownership desired when acquiring property to avoid any misunderstandings or unintended consequences. Consulting with a real estate attorney or legal professional can help you understand the implications of each form of co-ownership and determine which best suits your needs and goals.

Who is entitled to equity and possession of real property?

Most legal title holders and all equitable title holders are entitled to use, possession, or otherwise benefit from the property. There are many different cases in which a person can become an equitable title holder or owner and entitled to the property. Here are some examples of equitable title holders/owners:

• Marriage (all married partners, though some exceptions apply, e.g., some prenuptial agreements and where the parties keep completely separate finances);
• Tenants holding a leasehold estate (e.g., verbal lease for under a year or a written lease for over a year are entitled to live in the home until the lease expires or is terminated);
• A bank or other lender with a mortgage or other promissory note (often recorded on title but not necessary);
• holders of a life estate (are entitled to live in the property until they die);
• Vested and contingent beneficiaries under wills and trusts and intestacy (typically, children);
• A purchaser of real property (under a real estate purchase contract until they receive the deed);
• Holders of an option to purchase or lease option to purchase;
• individuals that made mortgage payments with the expectation that they would receive equity upon the sale of the property (typically life partners, friends, boyfriends, girlfriends, siblings, parents, etc.);
• individuals performing substantial labor in the construction of the property expecting ownership; and
• some other individuals not on the deed/title;

All these individuals previously received rights to live on the property through the operation of law, contract, statute, or actions making them equitable owners; therefore, they are entitled to protections under the law. They may also be entitled to the equity or proceeds from a sale of the property, or even to stop the sale of the property.

Assuming the equitable owners agree to a sale, they must receive a distribution of money proportional to their ownership interest and the increased market value during their ownership. In the case of spouses, this is typically a 50/50 split. When multiple people are owners, it can be anywhere from 1/3rd to a small fractional share.

Disputes In Shared/Joint Real Property Ownership

Sadly, disputes over real property are all too common, particularly in landlord-tenant relationships, divorces, and family inheritances. It may ultimately become necessary to force a party out of the property or to sell. The process for removing a party from the property or title and ensuring they have no rights to any equity upon the sale can be a simple or complex process. Only a qualified attorney can help you make a determination regarding possession, ownership, equity, and ownership entitlements.

If a spouse is on the title, they are entitled to own the home or at least share in the proceeds from the sale of the home. However, just because your Ex-spouse isn’t on title, doesn’t mean they aren’t entitled to the proceeds from the home, in fact, they almost certainly are (with very limited exceptions).

The question is really how much equity is my ex-spouse entitled and how do we calculate it? The answer depends on a few factors:

1. when the couple was married,
2. who owned the property before marriage,
3. whether there was a prenuptial agreement at the time of marriage,
4. the value of the property at the time of the marriage,
5. whether the couple kept completely separate finances during the marriage,
6. whether either or both parties paid the mortgage and how much each paid, and
7. whether the property value has increased and by how much.

Prior to the divorce, if neither spouse can agree as to who will receive the home or if neither spouse can afford to buy out the other’s equity, then the home will have to be sold. If the couple can’t agree on fair use, sale price, fair dividing up or splitting of land, or fair and equal use and possession, a court must determine how to split the property or force a sale and determine a fair sale price.

If you have been divorced, your divorce decree may award one spouse one or more homes; however, you may still be on title. You will still need to execute a deed to remove one party or the other from the title. An attorney can help draft, execute, and record a deed removing you or an ex-spouse from the title. Furthermore, you may still be on the mortgage. You may need to meet with an attorney to discuss the proper procedures to determine whether you can be removed from the mortgage.

Depending on the circumstances, it may be possible to remove an ex-spouse or other individual from the title as a legal title holder. For example, if you have been divorced but one spouse cannot be located or refuses to convey title to you, a court order can be obtained granting you sole and exclusive legal and equitable title to the property.

My boyfriend or girlfriend and I broke up, who gets the home or equity?

In the case of shared ownership between unmarried couples, boyfriends, girlfriends, life partners, or the like, where both parties are on title is relatively simple and follows the pattern for a divorce above. The ex-partners simply agree to sell the property and distribute the proceeds/equity, or one may buy the other out. An attorney can draft the purchase agreements and deeds and file them with the county recorder. If the parties cannot agree, However, where only one party is on the title, the question of equitable ownership becomes key. A party not on title may still have a right to live in or receive equity upon a sale.

My parent left me and my siblings a home, land or other real property, which sibling gets to control, use, and sell it?

The primary statute regulating inheritance in Utah is the Utah Uniform Probate Code (Utah Code § 75-1-101). If all children or siblings were left an interest in a home, land, or other real property through inheritance (as joint tenants or tenants in common), again, they are all entitled to use, possess, and benefit from the home or any sale proceeds in proportion to their ownership. Typically, no one sibling has more power or say in the use or whether or when to use, rent, or sell the property.

However, just as in divorce and other situations of shared ownership, where siblings, as joint owners, can’t agree on fair use, sale price, fair dividing up or splitting of land, or fair and equal use and possession, a court must determine how to split the property or force a sale and determine a fair sale price.