Oregon allows multiple forms of tenancy when two or more people are purchasing together:
- Tenants in Common [where the 2+ parties own individual shares of the property that can be sold and transferred at will and are reachable by creditors of the owner];
- Tenants by the Entirety [married couples who own the property as a single entity, where the surviving spouse retains the property, and creditors against an individual cannot attach the debt to the property owned by the entirety. Under ORS 106.340(1), registered domestic partnerships can also utilize tenancy by the entirety and are treated in the exact same way as a married couple’s tenancy by the entirety.]; and
- “Not as tenants in common, but with a right of survivorship,” or what other states would simply describe as a “joint tenancy.” But here in Oregon, we don’t use the words “joint tenancy” unless we’re specifically talking about trustees or personal representatives taking property with rights of survivorship under ORS 93.190. In fact, Oregon went so far as to state in ORS 93.180(3), “joint tenancy in real property is abolished, and the use in a conveyance or devise of the words’ joint tenants’ or similar words without any other indication of an intent to create a right of survivorship creates a tenancy in common.” From cursory research, it appears that only Oregon and Alaska have abandoned the concept of joint tenancy; everyone else has it as a form of unmarried, survivorship ownership of property. The state passed a law in 1854 that created joint tenancy, but 8 years later, in 1862, the joint tenancy concept was abolished. The Oregon Supreme Court in Erickson v. Erickson, 167 Or. 1 (1941), noted that the original common law stance was to create joint tenancy when multiple people purchased property together, and the justices posited that Oregon joined the extreme minority of states in opposing joint tenancies out of fear that people accidentally created them and thereby established toxic rights of survivorship. In other words, Oregon abolished joint tenancies because the heirs of the deceased joint tenants oftentimes found themselves with no ownership interest in the property, and the state believed that that sort of immediate transfer of ownership to the exclusion of the estate required absolute intentionality.
If you have a client coming in from another state, you may see the words joint tenant on the deed. Be aware, Oregon doesn’t play by those rules. In Oregon, if an unmarried couple is not in a registered domestic partnership and wants to take ownership collectively and establish an automatic movement of the property upon death, they either need to be “not tenants in common, but with a right of survivorship” or need to talk to an attorney about something more complicated, like a transfer-on-death deed.