How to Hold Title to Real Property - Domestic


Ways to Hold Title to Real Property - Domestic

The comparison below is provided for information only, it should not be used to determine how you hold title.

We strongly recommend that you seek professional counsel from an attorney and/or CPA to determine the legal and tax consequences of how title is vested.

 

TENACY IN COMMON

JOINT TENANCY

COMMUNITY PROPERTY

COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP

Parties

Any number of persons (can be husband wife or registered domestic partners.)

Any number of persons (can be husband and wife or registered domestic partners)

Any number of persons (can be husband and wife or registered domestic partners.)

Only husband and wife, or registered domestic partners

Division

Ownership can be divided into any number of interests, equal or unequal.

Ownership interests must be equal

Ownership and managerial interests are equal.

Ownership and managerial interests are equal.

Title

Each co-owner has a separate legal title to his or her undivided interest.

There must be unity of title and time. (created in one document)

Title is in the "community."  Each interest is separate but management is unified.

Title is in the "community."  Each interest is separate but management is unified.  Title must expressly state community property with right to survivorship.

Possession

Equal rights of possession.

Equal right of possession

Both co-owners have equal management and control.

Both co-owners have equal management and control.

Conveyance

Each co-owner's interest may be conveyed separately by its individual owner.

Conveyance by one co-owner without the others will terminate that individual's joint tenancy.

Real property requires written consent of other spouse, and separate interest cannot be conveyed except upon death.

Real property requires written consent of other spouse, and separate interest cannot be conveyed except upon death.

Purchaser's Status

Purchaser will become a tenant in common with the other property co-owners.

Purchase will become a tenant in common with the other co-owners.

Purchaser can acquire title from the community with written consent or joinder of both spouses.

Purchaser can acquire title from the community with written consent or joinder of both spouses.

Death

On co-owner's death, his or her interest passes by will to that person's devisees or heirs.  No survivorship right.

On co-owner's death, his or her interest ends and cannot be disposed of by will.  Survivor(s) own(s) the property.  An affidavit of death of joint tenant establishes death.

Upon death of one spouse, 50% belongs to surviving spouse, 50% goes by will to descendant's devisees or by succession to surviving spouse.

Upon death of one spouse, his or her interest ends and cannot be disposed by will.   Survivor owns the property 100%.  An affidavit of death (community property with right of survivorship) establishes death of a spouse.

Successor's Status

Devisees or heirs become tenants in common.

Last survivor owns property 100%

If passing by will, tenancy in common between devisees and survivor results.

Purchaser can only acquire whole title of community; cannot acquire a part of it.

Creditor's Rights

Co-owner's interest may be sold on execution sale to satisfy his or her creditor.  The 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

Property of community is liable for contracts of either spouse which were made after marriage and prior to or after January 1, 1975.  Co-owner's interest cannot be sold separately; whole property may be sold on execution to satisfy creditor.

Property of community is liable for contracts of either spouse which were made after marriage and prior to or after January 1, 1975.  Co-owner's interest cannot be sold separately; whole property may be sold on execution to satisfy creditor.

Presumption

Favored in doubtful cases except husband and wife case.

Must be expressly stated.  Not favored.

The legal presumption is that property which has been acquired during the course of the marriage is community property.

After July 1, 2001, there is no presumption.  The code reads that deeds must state "community property with the right of survivorship."