The term severance is another real estate term that can sometimes be confusing. It can be confusing because severance in real estate can include joint tenancy and real property severance.
Severance is about taking or severing real property so that it now becomes personal property. It also has to deal with the severing or termination of a joint tenancy agreement. In some cases, severance, especially in joint tenancy, can get very messy where the court will need to get involved to decide how the property is severed or disposed of.
Table of Contents
- Severance In Property Defined
- 3 Ways For Severance In A Joint Property
- Severance In Real Property
- Frequently Asked Questions
- Related Question
Severance In Property Defined
The words severance when it comes to property and real estate can have two meaning. One meaning has to do with the termination of joint tenancy, and the other is removable aspects of real property.
Severance is a legal term, and the meanings of severance in real estate are as follows:
“Termination of joint tenancy. The permanent removal of a natural attachment, fixture, appurtenance from real property which transforms the item into personal property.”
Severance Definition
The word severance in real estate is about some severing something as a joint tenancy or a piece of land from another piece of land. The severing of the joint tenancy or land from another land would be considered a severance for real estate.
Severance is about changing the item from real to personal property by detaching it from the land. For example, a smaller land could be annexed to a larger one.
Usually, severance in property law requires consent for the land to be severed from one land to another or for the joint tenancy to be removed. Local laws and county regulations can also decide whether or not the property can have severance.
3 Ways For Severance In A Joint Property
The most common way for severance in a property is if a couple is married and jointly owns the property and then decides to get divorced. There will then be an agreement, or there will be legal aspects to decide how that joint property will then be handled as the couple is now divorced and no longer living together in the house, or one person is living there, but they both jointly own the house.
Like any property owner, a joint tenant is entitled to deal freely with their interest in the property. If the joint tenant dies, for example, a spouse dies, then the severance is no longer possible because of death extinguishers the joint tenancy interest.
In other words, if one joint tenant dies, there is no longer a joint tenancy, so there is no need for a tenancy severance.
Here are some aspects of Joint Tenancy and severance:
- One Joint Tenant Decides To Sever Their Joint Tenancy – One of the joint tenants decides they want to sever their joint tenancy. The individual would then create a severance for their share. A move like this can cause a lot of hostility with the other party. When one party does this, they may have a kind of strawman or someone who holds an interest in the property.
- Mutual Agreements – The second way is probably the best way in most cases where both parties mutually agree to sever the joint tenancy. This means that both parties will jointly decide what to do. Under this, the joint tenancy would be dissolved, and a tenancy in common can be formed between a third person and the remaining co-tenant.
- Seek Judicial Partition – You can also seek a judicial partition. There are two kinds of partition which are:
- Partition in Kind is with the physical division of the land; the decision for this division would be in the hands of the courts.
- Court Ordered Sale of Property is when the court will order the sale of the property and decide how the proceeds are divided up.
- Partition in Kind is with the physical division of the land; the decision for this division would be in the hands of the courts.
Of all these three ways, the best one is usually the one where two parties can try to put their differences behind them and find a way to mutually agree on the severance and how the severance of the joint tenancy will be handled.
Severance In Real Property
Another way that severance occurs is when it involves taking an item attached to the land of real property and removing it where it becomes personal property. How many items may have an attachment when removed becomes personal property, meaning that he can take it off the real property.
An example of this would be a hot tub. Someone may have a hot tub they just purchased, and even though it is attached and considered an appurtenance of the property, they may decide they want to take it with them.
The hot tub would not be part of the house but would be severed from the house and then would become personal property. This would then be an example of severance; you could leave the hot tub as an attachment to the house, take it with you as part of your personal property, and then put it on another property.
A severance in real estate is about taking something attached to the property and then taking it off the property or detaching it so that it now becomes personal property. Some examples of severance could include:
- Cutting down a tree from a property
- Pulling out prize rose bushes from a garden to replant in a new location.
- Take a hot tub from the house.
- Taking off a door from the frame to use in another location.
- Pull down a shed or greenhouse to take with you.
- Severing off a bit of land to put with the land next door.
- Taking down a gazebo from a property.
The key here with the severance is that all of these are about taking something from the land once it was sold, not to be part of the sale of the real property but instead to take it out of the real property so that now it becomes personal property.
Most people will sever items as they have some unique or essential meaning. In other words, even though they are selling their home or real property, there is something they do not want to sell together with the property. Hence, they want to be able to sever it from the existing property to put it on a new property or location.
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Frequently Asked Questions
1. What is severance in property?
Severance in property refers to the process of converting real property into personal property. It can also involve the termination of a joint tenancy agreement.
2. How does severance occur in real estate?
Severance typically occurs when an item or feature that was once considered part of the real property is intentionally detached or altered in a way that it becomes personal property. This transformation can have legal and financial implications.
3. What is the significance of severance in real estate transactions?
Severance can impact property ownership and rights, affecting how a property is used, transferred, or sold. It’s important to understand severance to avoid legal complications.
4. Can you provide an example of severance in real estate?
An example of severance is when a landowner removes fixtures, such as a built-in cabinet or lighting fixture, from a property before selling it, turning those fixtures into personal property.
5. How does severance relate to joint tenancy?
In the context of joint tenancy, severance occurs when one co-owner takes action to end the joint tenancy arrangement, potentially converting it into a tenancy in common.
6. What are the consequences of severing a joint tenancy?
Severing a joint tenancy can have significant legal consequences, potentially leading to the sale or distribution of the property among the co-owners or beneficiaries.
7. Can severance in property lead to disputes or legal proceedings?
Yes, severance, especially in joint tenancy cases, can become complex and contentious, often requiring court intervention to determine how the property should be severed or distributed.
8. Are there specific legal requirements for severance in property?
The legal requirements for severance may vary by jurisdiction, but generally, it involves a deliberate action to physically detach or change the status of an item from real property to personal property.
9. How can one avoid complications related to severance in real estate transactions?
To avoid complications, it’s crucial to clearly define and document the status of items and agreements related to the property in contracts, deeds, and other legal documents.
10. Should I seek legal advice when dealing with severance in property matters?
Yes, it’s advisable to consult with a qualified real estate attorney when dealing with severance issues to ensure you understand the legal implications and make informed decisions regarding your property.
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