Q:
We are in the process of buying a house, and we really don’t understand the different ways to hold title and what the consequences might be.
A:
In California, a title to real property may be held by individuals, either in sole ownership or in co-ownership. Co-ownership of property occurs when the title is held by two or more persons. There are several variations as to how a title may be held in each type of ownership.
Thanks to our friends at Chicago Title, here are the eight most common examples of sole and co-ownership.
Sole ownership – a single man/woman. A man or woman who is not legally married. Example: John Doe, a single man.
An unmarried man or woman – a man or woman who may have been married or legally divorced. Example: Jane Doe, an unmarried woman.
A married man or woman, as his or her own separate property owner. When a married man or woman wishes to acquire a title in his or her name alone, the spouse must consent (by quitclaim deed or otherwise) to transfer and relinquish all rights, titles and interests in the property.
Example: John Doe, a married man, as his sole and separate property.
Co-ownership: community property. Real property conveyed to a married man or woman is presumed to be community property unless otherwise stated. Under community property, both spouses have the right to dispose of one half of the community property. Upon either party’s death, their half will go to the surviving spouse without any administration.
Example: John Doe and Jane Doe, husband and wife, owning a home as community property.
Joint tenancy. According to the Civil Code: “A joint interest is one owned by two or more persons in equal shares.” The chief characteristic of joint tenancy is the right of survivorship. When a joint tenant dies, the title to the property immediately vests in the surviving joint tenant or tennants. As a consequence, joint tenancy property is not subject to disposition by will.
Example: John Doe and Jane Doe, husband and wife, as joint tenants.
Tenancy in common. Under tenancy in common, the co-owners own individual interests, but unlike joint tenancy, these interest may not be equal in quantity or duration, and may arise at different times. There is no right of survivorship. Each tenant owns an interest that, on his or her death, vests in his or her heirs.
Example: John Doe, a single man, has an undivided one third interest, as tenants in common.
Trust. Title in California may be held in a trust. The trust holds the legal title. The trustee holds title for the trustor or beneficiary who retains all of the management rights and responsibilities.
Community property with right of survivorship. Community property of a husband and wife, when expressly declared in the transfer document to be community property with the right of survivorship, shall upon the death of one of the spouses, pass to the survivor.
These summaries are a few of the common ways to hold title to real property in California.
There are significant tax and legal consequences on how you hold title, and you should consult your accountant or attorney for a comprehensive understanding of your rights.
If you already own real estate, it’s a good idea to review how you are currently holding title. It’s a simple and inexpensive process to change the vesting or correct the vesting you currently have in place.
Lee Schmidt is the broker/owner of Realty World South County and can be reached at 782-9933 or [email protected]. Send your real estate questions to him and they could appear here. His column runs on the fourth Tuesday of the month.
