In the state of California, proof of ownership and transfer of real estate
is managed depending upon the legally held form of title.
Real property can be owned in several different forms, each method of holding title has its advantages and disadvantages, depending on an individual's particular situation with implications of how ownership passes upon the triggering of an event such as death, divorce or sale.
There are four common forms of ownership: sole ownership, joint tenancy, tenancy in common and community property. Each form of title has implications on how the property can be transferred, financed/re-financed, improved or used as collateral.
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Sole ownership occurs when title to the property is held by an individual or entity legally capable of holding title. The most common forms of sole ownership are:
A single man or woman holding title to the property;
A married man or woman holding title to the property during marriage separately from his or her spouse; or
A business with a corporate structure that permits holding an interest in real estate.
Where a married man or woman owns property apart from his/her spouse during the marital period, the owner should consider obtaining an Interspousal Transfer Deed that specifically disclaims and relinquishes the non-owning spouse’s interest in the real property. Please consult with an attorney on how to protect a separate property estate from the community acquiring an interest in same.
A joint tenancy exists when title to real estate is held by two or more individuals jointly with a right of survivorship. Each joint tenant owns the property in its entirety (100%) and has equal rights to enjoy the property.
The advantage of owning property as a joint tenant is that upon the death of one joint tenant, his/her ownership interest in the property automatically passes to the remaining joint tenant(s) upon recordation of an Affidavit of Death of Joint Tenant.
The disadvantage of a joint tenancy is that it is not easily terminated absent joint agreement. To terminate a joint tenancy, one must petition the court to divide the property or order its sale. Another downside of joint tenancy is that any financing or use of the property for financial gain requires approval by all parties. Also, a creditor can petition the court to force division and sale of the property to collect on a judgment.
An advantage or disadvantage, depending upon your intentions at death, is that ownership cannot be transferred at death by will. Rather, ownership at death is automatically vested with the surviving joint tenant(s).
Tenancy In Common
In a tenancy in common, two or more individuals hold title to real estate jointly, with equal rights to enjoy the property during their lives. Unlike joint tenancy, tenants in common hold title individually for their proportional interest in the property.
An advantage to a tenancy in common is that the co-tenant can dispose of, or encumber, his/her interest at will. A tenancy in common allows for one owner to use the wealth created by his/her portion of the property as collateral for financial transactions, and creditor’s liens only encumber the owner's proportional interest in the real property.
A disadvantage to a tenancy in common is that all liens must be cleared in order for a total transfer of ownership to take place.
Community property is a form of real property ownership for spouses. Absent a writing to the contrary, any property acquired during the martial period is presumed to be community property.
With community property, a spouse can dispose of his or her community interest in the property. Additionally, this form of ownership has the option of owning the property as joint tenants with a right of survivorship.