The following is provided for general information only. The method of
holding title (vesting) has certain significant legal and /or tax
consequences and you are encouraged to obtain advice from an attorney or
tax consultant or another qualified professional.
|
|
TENANCY IN COMMON |
JOINT TENANCY |
COMMUNITY PROPERTY |
| Who can take title? |
Any number of persons
(can be husband and wife). |
Any number of persons
(can be husband and wife). |
Only husband and wife. |
| How is ownership
divided? |
Ownership can be
divided into any number of interests, equal or unequal. |
Ownership interest
cannot be divided. |
Ownership interests
are equal. |
| Who holds the title? |
Each co-owner has a
separate legal title to his undivided interest. |
There is only one
title to the whole property. |
Title in the
"community" (similar to title being in a partnership). |
| Who has possession? |
Equal right of
possession. |
Equal right of
possession. |
Equal right of
possession. |
| How do owners convey
their interest? |
Each co-owner's
interest may be conveyed separately by its owner. |
Conveyance by one
co-owner without the others breaks the joint tenancy, and owners
then become tenants in common. |
Both co-owners must
join in conveyance of real property. Separate interest cannot be
conveyed. |
| Purchaser’s status |
Purchaser becomes a
tenant in common with the other co-owners. |
Purchaser becomes a
tenant in common with the other co-owners. |
Purchaser can only
acquire whole title of community; cannot acquire a part of it. |
| What happens in case
of death? |
On co-owner's death,
his interest passes by will to his devisees* or heirs. No
survivorship right. |
On co-owner's death,
his interest ends and cannot be willed. Survivor owns the
property by survivorship. |
On co-owner's death,
it goes to survivor in severalty. It goes by will to decedent's
devisee* or by succession to survivor. |
| What is the
successor’s status? |
Devisees* or heirs
become tenants in common. |
Last survivor owns
property in severalty. |
If passing by will,
tenancy in common between devisee* and survivor results. |
| What is a creditor’s
interest? |
Co-owner’s interest
may be sold on execution sale to satisfy his creditor. Creditor
becomes a tenant in common. |
Co-owner’s interest
may be sold on execution sale to satisfy creditor. Joint tenancy
is broken. Creditor becomes tenant in common. |
Co-owner’s interest
cannot be seized and sold separately. The whole property may be
sold to satisfy debts of either husband or wife. |
| What is the
presumption of law? |
Favored in doubtful
cases except husband and wife (see community property). |
Must be expressly
stated and properly formed. Not favored. |
Strong presumption
that property acquired by husband and wife is community. |
*Note: A devisee is a person who receives real estate from another by
will.
How should I take ownership of the property I am buying? This
important question is one California real property purchasers ask their
real estate, escrow and title professionals every day. Unfortunately,
though these professionals may identify the many methods 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. You are
encouraged to obtain advice form an attorney or tax consultant or
another qualified professional in this manner.
