• Skip to main content
  • Skip to primary sidebar

Stowe Law PLLC

Practical Real Estate & Probate Attorney

  • HOME
  • PRACTICE AREAS
  • PRACTICE GOALS
  • CONTACT & APPOINTMENTS
  • ABOUT MARK STOWE
  • NHLPA HOCKEY AGENT
  • LAW BLOG

February 5, 2022 By stowelawpllc

TENANCY IN COMMON OWNERSHIP WASHINGTON REAL ESTATE

What is Tenancy-In-Common Ownership in Washington Real Estate? Tenancy-In-Common is one way for two or more persons to hold ownership together in Washington Real Estate. Each co-tenant owns an undivided interest in the entire property. This means that specific areas of the family cabin are not owned by one co-tenant or another but are shared as a whole collectively. There may be multiple co-tenants with the same or different ownership interests over time. Every co-tenant has the right to possess, use and enjoy the entire property. As a result, each co-tenant can do more or less what they want to do with their own interest, including sell, transfer and even encumber it without the consent of the other co-tenants. It is recommended that the co-tenants create a written co-tenancy agreement which specifies the rights and duties of each co-tenant including the payment of property taxes, utilities and maintenance as well as a right of first refusal in the event of a sale, transfer, death or bankruptcy. It is best to record the agreement or at least notice of the agreement with the County Auditor. The interest of each co-tenant passes onto their estate as there is no right of survivorship as in the case of a Joint Tenancy.

Sometimes one of the co-tenants fails to pay for his or her fair share of the property taxes, utilities and maintenance. Or perhaps the co-tenants disagree about the future use of the property. In the event that the co-tenants are unable to resolve their disputes and amicably agree, then each co-tenant has a statutory right to partition the property in Superior Court. A judge may order a partition in kind by physically dividing the property between all of the co-tenants, or alternatively, order a partition by sale. While the partition in kind is favored by the Court the fundamental question is whether the partition in kind would somehow prejudice the owners.  

If for example a partition into separate lots would not comply with the current zoning and subdivision laws and codes, then the co-tenants would not be able to obtain building, septic and other development permits. Any such division would be illegal as partitions are not exempt from subdivision requirements in Washington. Clearly, the co-tenants would be prejudiced. To avoid the prejudice the Court may order a partition by sale.

Another example involves the fair market value of the property. Would the entire property have a fair market value greater or less than all of the partitioned lots individually? Realizing the fair market values may not add up there may be prejudice when the entire property has a greater fair market value than the partitioned lots individually. In this case the Court has the power to offset any differences in the valuation by a monetary award or equitably if possible. If the prejudice can not be reconciled by the Court equitably, then a partition by sale may be ordered. 

It is not uncommon for the Court to appoint a Referee or a Special Master to assist with the feasibility of a subdivision, or potential sale.

The above is information is by no way exhaustive. And the above is not intended to be legal advice but is general information provided as a courtesy.

Want more information?

Filed Under: Real Estate

Primary Sidebar

Article Categories

  • Non-Probate Methods
  • Probate
  • Real Estate
  • Taxation
Mark Stowe, Lawyer

Contact Mark

Phone
Point Roberts: 360-945-0337
Bellingham: 360-389-3398
Seattle: 206-395-4075
B.C.: 604-800-9669

Email
stowelawpllc@outlook.com

Address
Stowe Law PLLC
276 Boundary Bay Road
Point Roberts, WA 98281

REQUEST A CALL BACK

Located at 276 Boundary Bay Road in Point Roberts Washington

  • COPYRIGHT
  • Disclaimer
  • PAYMENTS

Copyright © 2025 STOWE LAW PLLC · Log in

Real Estate: Purchase and Sales Agreements, Deeds and Conveyances, Financing and Title Issues.
Property Rights: Easements, Covenants, Agreements, Adverse Rights and Disputes.
Land Use: Permits and Approvals, Property Development and Environmental Compliance.

Canadian Non-U.S. Residents Buying Real Estate in Washington State

  • Buying Real Estate in Washington is different from B.C.
  • Plan before and consider a B.C. Trust or other alternatives to hold title with your B.C. Lawyer, as well as other alternatives in Washington.
  • “Closing” or completion documents are usually prepared by an escrow agent (usually affiliated with a Title Insurance Company), and not by an attorney as in B.C.
  • South of the Border, Title Insurance Companies insure the ”title” and certain matters may or may not be covered. But recognize that it is possible for a property owner to lose property rights by adverse claims over time. So there is often risks in any real estate transaction.
  • In order to reduce the risks, it is recommended that a buyer obtain a survey before completing the purchase of Real Estate in Washington.

Canadian Non-U.S. Residents Selling or Gifting Real Estate in Washington State

  • A sale of U.S. real estate requires the buyer to withhold 15% of the amount realized by the foreign seller on most transactions unless exempted.
  • A sale of U.S. real estate may result in U.S. tax liability to the foreign seller although the tax rate may be reduced by capital gains treatment. Any tax paid in the U.S. may be a credit against taxes owed in Canada.
  • A gift of U.S. real estate is generally not favorable and may result in U.S. tax liability. Non-U.S. residents are generally limited to gifting $15,000 USD per year of U.S. based assets tax free.
ARE YOU EXEMPT?
  • Canadian Non-Residents with US based assets are exempt from US estate tax if the value of the assets is $60,000 USD or less. And in this case, no US Estate Tax Form 706-NA would be required. If the Canadian Non-Resident owned U.S. Real Estate it is recommended a Transfer Certificate be obtained from the IRS before any transfer from the decedent’s estate/ Above $60,000 USD a US estate tax return 706-NA is required to be filed within nine (9) months after the date of death. In order to determine if there would be any US estate tax due, a formula under the US-Canada Tax Treaty kicks in. See US- Canada Tax Treaty link below. Normally, there is no US estate tax if the value of your worldwide assets does not exceed the maximum amount, which is adjusted annually. In 2017, it is about $5.4 Million USD. But if your worldwide assets exceed the formula or the $5.4 Million USD (as adjusted annually) there may be US Estate Tax due (which can be around 40%). And the decedent’s estate should request a transfer certificate from the IRS before the estate transfers any property.
  • Link: U.S.-Canada Tax Treaty
  • Article XXIX B (Taxes Imposed by Reason of Death) of the U.S.-Canada Income Tax Treaty (“Treaty” ) provides special rules that may reduce taxes for U.S. citizen or resident decedents with Canadian property and Canadian residents with U.S. property. These rules were first incorporated into the Treaty under the 1995 Protocol to the Treaty.
  • If the decedent was a Canadian resident but not a U.S. citizen at the time of death, the estate can take a “pro rata” unified credit to compute U.S. estate tax. The pro rata credit under the Canadian treaty is determined by multiplying the exclusion amount available to a U.S. citizen decedent by a fraction of the value of the decedent’s U.S. assets over the value of the decedent’s world-wide assets. A statement invoking the right under the Treaty described above and showing the tax calculation must be attached to Form 706-NA. See paragraph 2 of Article XXIX B of the Treaty.
U.S. GREEN CARD HOLDERS
  • Watch abandoning your Green Card, including by failing to change your address and extended visits abroad for more than 180 days.
  • Watch the Expatriation Tax if you abandon your Green Card after satisfying the 8 of 15 year test.
  • Watch U.S. Estate Tax liability if you remain a Green Card holder indefinitely, and do not naturalize and become a U.S. Citizen. In 2017, a U.S. Citizen is entitled to a unified credit of $5,400,000 USD against U.S. Estate Tax.

Canadian Non-Residents Have Preferred Non-Probate Alternatives
to Transfer Real
Estate in Washington State

  • Washington State has innovative non-probate alternatives to transfer real estate upon death in comparison to B.C.
  • Options include Community Property Agreements between spouses, and Transfer on Death Deeds (“TODD”), which can be used between spouses, children, relatives, or other beneficiaries.
  • Another option includes an Affidavit of No (or Lack of) Probate in Washington, and in effect, transfer ownership to the surviving heirs.
  • And even if a Probate is necessary it is often not as burdensome and expensive as in B.C. While there is a court filing fee in Washington, there are no “probate fees” as in B.C.

Canadian Non-Residents Buying Real Estate in Washington State

  • Buying Real Estate in Washington is different than in B.C.
  • Plan before and consider a B.C. Trust or other alternatives to hold title with your B.C. Lawyer, or other alternatives in Washington.
  • “Closing” or final documents are usually prepared by escrow companies, and not completed by an attorney like in B.C.
  • South of the Border, title companies insure the ”title” and certain matters may or may not be excepted. But it is possible for a property owner to lose his property rights by adverse claims over time.
Canadian Non-Residents Selling

Canadian Non-Residents Selling or Gifting Real Estate
in Washington
State

  • A sale of property may trigger U.S. tax liability but the tax rate may be reduced by capital gains treatment. There is often a withholding on most transactions.
  • Gifting U.S. real estate is generally not favorable and may result in U.S. tax liability.
DISCLAIMER

The articles and information contained on in this website were prepared by Stowe Law PLLC. They are a general statement of the law of the State of Washington. The laws of other states differ from Washington law, and these articles are not intended to describe the law of any state except Washington. The articles and information found on this web site are intended for general informational purposes. They are not legal advice for a reader in any particular legal situation. The only way to obtain legal advice on a particular situation is to consult a licensed attorney. The reader’s use of this website and the information contained herein does not create an attorney-client relationship of any kind with Stowe Law PLLC.

COPYRIGHT

The information contained in this website, its design, and its functionality are all subject to copyright by Stowe Law PLLC to the extent allowed by United States law. All rights reserved. No portion of the information contained in this web site may be reproduced in any fashion without the prior written consent of Stowe Law PLLC.

The BC & Whatcom County Connection

  • Mark understands B.C. and Canadian Culture.
  • Mark, a resident of Point Roberts, WA, has been surrounded by Canadians visiting
    their cottages for many years.
  • Mark’s daughter, born in B.C., plays sports in B.C.
  • Mark enjoys hiking on the Northshore.
  • Mark relishes the views of Mount Baker and the Salish Sea.
  • Mark enjoys walking the family dog, Enzo, in the woods at Point Roberts.
  • Mark is still trying to “successfully” ride his mountain bike down Galbraith Mountain.
  • EDUCATION
  • University of Washington, Seattle, WA                                          1983
  • Bachelor of Arts in Philosophy–Cum Laude, Honorary Distinction, Phi Beta Kappa
  • Phi Delta Theta Fraternity
  • Gonzaga University, Spokane, WA 1986
  • Juris Doctorate
  • AFFILIATIONS
  • Washington State Bar Association, Member.                    1987-present.
  • US District Court, Western District of Washington, Seattle, WA. 1987-present.
  • Certified Player Agent by the National Hockey League Players Association (“NHLPA”). 1996-present.
  • US Tax Court, Washington D.C. 2009-present.
  • Practitioner of Foreign Law, The Law Society of British Columbia 2017-present.
  • INTERESTS  
  • Enjoys Family, Hockey, Baseball, Mountain Biking, Hiking, and Travel.