| This important question is one California real property purchasers ask their real estate, escrow and title professionals every day. Unfortunately, though these professionals identify the many method of owning property, they may not recommend a specific form of ownership, as doing so would constitute practicing law. Because real property has become increasingly more valuable, the question of how parties take ownership of their property has gained greater importance. The form of ownership taken- the vesting of title-will determine who may sign various documents involving the property and future rights of the parties to the transaction. These rights involve such matters as: real property taxes, income taxes, inheritance and gift taxes, transferability of title and exposure to creditor's claims. Also, how title is vested can have significant probate implications in the event of death. The California Land Title Association (CLTA) advises those purchasing real property to give careful consideration to the manner in which title will be held. Buyers may wish to consult legal counsel to determine the most advantageous form of ownership for their particular situation, especially in cases of multiple owners of a single property. The CLTA has provided the following definitions of common vestings as an information overview. Consumers should not rely on The CLTA has provided the following definitions of common vestings as an information overview. Consumers should not rely on these as legal definitions. The Association urges real property purchasers to carefully consider their titling decision prior to closing, or to seek counsel should they be unfamiliar with the most suitable ownership choice for their particular situation. Sole Ownership Sole ownership may be described as ownership by an individual or other entity capable of acquiring title. Examples of common vestings in cases of sole ownership are: 1. A single Man/Woman: A man or woman who has not been legally married. For example: Bruce Buyer, a single man. 2.An unmarried Man/Woman: A man or woman who was previously married and is now legally divorced. For example: Sally Seller, an unmarried woman. 3.A Married Man/Woman as his/ her sole and separate property: A married man or woman who wishes to acquire title in his or her name alone. The title company insuring title will require the spouse of the married man or woman acquiring title to specifically disclaim or relinquish his or her right, title and interest to the property. This establishes that it is the desire of both spouses that title to the property be granted to one spouse as that spouse's sole and separate property, for example: Bruce Buyer, a married man, as his sole and separate property. Co-ownership Title to property owned by two or more people may be vested in the following forms: 1.Community property: A form of vesting title to property owned by husband and wife during their marriage which they intended to own together. Community property is distinguished from separate property, which is property acquired before marriage, by separate gift or bequest, after legal separation, or which is agreed to be owned by one spouse. In California, real property conveyed to a married man or woman is presumed to be community property unless otherwise stated. Since all such property is owned equally, husband and wife must sign all agreements and documents of transfer. Under community property, either spouse has the right to dispose of one half of the community property including transfers by will. For example: Bruce Buyer and Barbara Buyer, husband and wife as community property. 2. 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 right of survivorship, and which may be accepted in writing on the face of the document by a statement signed or initialed bu the grantees, shall, upon the death of one of the spouses, pass to the survivor without administration pursuant to the terms of the instrument, subject to the same procedures as property held in joint tenancy. Prior to the death of either spouse, the rights of survivorship may be terminated pursuant to the same procedures by which a joint tenancy may be severed. 3.Joint Tenancy: A form of vesting title to property owned by two or more persons, who may or may not be married, in equal interest, subject to the right of survivorship in the surviving joint tenant(s). Title must have been acquired at the same time, by the same conveyance, and the document must expressly declare the intention to create a joint tenancy estate. When a joint tenant dies, title to the property is automatically conveyed by operation of law to the surviving joint tenant(s). Therefore, joint tenancy property is not subject to disposition by will. For example: Bruce Buyer and Barbara Buyer, husband and wife as joint tenants. 4.Tenancy in Common: A form of vesting title to property owned by any two or more individuals on undivided fractional interests. These fractional interests may be unequal in quantity or duration and may arise at different times. Each tenant in common owns a share of the property is entitled to a comparable portion of income from the property and must bear an equivalent share of expenses. Each co-tenant may sell, lease or will to his/her heir that share of the property belonging to him/her. For example: Bruce Buyer, a single man, as to an undivided 3/4 interest and penny purchaser, a single woman, as to an undivided 1/4 interest, as tenants in common. Other ways of vesting title include: 1.A Corporation: A corporation is a legal entity, created under state law, consisting of one or more shareholders but regarded under law as having an existence and personality separate from such shareholders. 2.A Partnership: A partnership is an association of two or more persons who can carry on business for profit as co-owners, as governed by the Uniform Partnership Act. A partnership may hold title to real property in the name of the partnership. 3.A Trust: A trust is a an arrangement whereby legal title to property is transferred by the granter to a person called a trustee, to be held and managed by that person for the benefit of the people specified in the trust agreement called the beneficiaries. *In cases of corporate, partnership, or trust ownership, the title company will require that it be furnished with legal documents so that it may satisfy itself as to ownership rights of the parties to the transaction and any limitations which may exist on the sale, transfer encumbrance of the property. Required documents may include corporate articles and bylaws, certificates of partnership and trust agreements. Remember: How title is vested has important legal consequences. You may wish to consult an attorney to determine the most advantageous form of ownership for your particular situation. |
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Common Method of Holding Title