The purpose of this article is to make you aware of the many different ways in title in real property may be held or vested. Although there are many different means in which one can have an interest in land, such as Fee (Simple, Absolute, Determinable), Life Estate, or Future Interest, I will try not to bore with such, yet alone the Rule Against Perpetuities.
Title to real property in California may be held by individuals, either in Sole Ownership or by more than one party.
Equal undivided shares in the whole of the property with right of survivorship, requiring time, title, interest, and possession. All ownership shares must be acquired at the same time and in equal shares.
The primary benefit in taking title in real property with another as Joint Tenants is that all parties hold an equal interest with the right of survivorship. In addition, one owner can sell or lien their respective interest. Although selling ones interest would then terminate the Joint Tenancy with that of the other title holders thereby creating a Tenants in Common type vesting.
As for the right of survivorship, this is an automatic function of law. In other words, upon the death of one party, their interest immediately and automatically transfers equally to the other(s). This avoids probate, but often creates confusion. One may leave their share in a property owned as a Joint Tenant to a third party, but at death, that transfer never occurs. This is because the right of survivorship is immediate and the property is no longer part of their estate. So at death, they no longer have an interest that can be gifted to another.
Tenants in Common:
Title may be held by two or more in unequal shares, as a separate undivided interest with no right of survivorship.
Each owner may transfer, lien, or otherwise encumber their respective share without the liability of the other. Note however that most lenders or purchasers are not interested in a portion of ownership in land. An owner may also will or otherwise gift their ownership interest.
California is a Community Property State wherein all property, real or personal, regardless of location which is acquired during marriage while living in California is presumed to belong to both partners.
It is similar to that of Joint Tenancy in that both parties hold an equal undivided interest. Additionally, similar to that of Tenants in Common as both parties may will their interest upon death. However, both parties must consent to either lien or sell the land. Short of a Will or other bequest of their interest, a deceased partner’s interest transfers to the surviving spouse.
Title to real property in California may be held by a trustee in trust; the trustee of the trust holds title pursuant to the terms of the trust for the benefit of the trustor or beneficiary. In addition, title may also be held by a legal entity such as a corporation or LLC (Limited Liablity Company).
Make sure you are informed, and know of the potential advantages and disadvantages of each of these vesting options. When in doubt, consult with an attorney.
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Disclaimer: Every situation is different and particular facts may vary thereby changing or altering a possible course of action or conclusion. The information contained herein is intended to be general in nature as laws vary between federal, state, counties, and municipalities and therefore may not apply to any given matter. This information is not intended to be legal advice or relied upon as a legal opinion, course of action, accounting, tax or other professional service. You should consult the proper legal or professional advisor knowledgeable in the area that pertains to your particular situation.