* Common ways to "Holding Title" of Real Property *
While you are "in escrow" and as you are completing the purchase of your property you will be asked the question as to how you are going to hold title to the property (ie: vesting/ownership)?. How you are to hold title needs to be known prior to the closing of escrow date. The vesting will appear on the Deed of Trust (conveys property to a Trustee) and the Grant Deed (transfer of real property from one person or entity to another person or entity), which are recorded documents. It is common that the escrow officer or lender or both will ask you how you want to hold title.
The manner in which you hold title may have significant legal and tax consequences. The form of ownership/vesting decided by the buyer/s can determine who is eligible to to sign various documents relative to current-ongoing and future rights of the parties in regards to the particular transaction at hand. For example: who is to sign if..... there is more than one owner, who signs if the title is held in a "trust", also who signs if the owner/s want to "Will" the property to a family member or a loved one .
Also how title is vested/held can have significant probate implcations in the event of a death. Therefore I highly recommend that you consult with your Tax Accountant/CPA or seek legal counsel as to your decision on how you want to hold title.
Unfortunately REALTOR's, Escrow and Title professionals cannot recommend a specific form of ownership. They may identify the many methods of owning property, but we may not recommend a specific form of ownership because in doing so, that would constitute as us practicing law.
The California Land Title Association (CLTA) advises those who are purchasing real property to give careful consideration to the manner in which title will be held (ie: vested). The CLTA also urges those who are unfamiliar with the best suitable form of ownership to seek legal counsel.
* The following are common ways to hold/vest Title of real property in California. The CLTA has provided the following definitions of common vestings as an "informational overview" only.
1) A Single Man/Woman: A man or woman who is not legally married or in a domestic partnership. - Example: John Smith; a single man or Sue Smith; a single lady
2) Unmarried Man or Woman: A man or woman, who having been married are now legally divorced. Example: John Doe; an unmarried man or Sue Jones; an unmarried woman.
3) A Married Man or Woman and/or a Domestic partner as His or Her Sole and Separate Property: A Married and/or a Domestic partner who wishes to acquire title in his or her name alone - The title company insuring title will require the Married/Domestic partner of the person acquiring title to specifically disclaim or relinquish all his or her rights, title and interest to the property. This relinquishing of all rights is commonly done utilizing a Quit Claim Deed. This establishes that both Married and/or Domestic partners want title to the property to be granted to one individual as that person’s sole and separate property.
Title to property owned by two or more persons may be vested in the following forms:
4) Community Property: A form of vesting title to property owned together by married persons or by domestic partners. Community property is distinguished from separate property, which is property "acquired" before marriage or before a domestic partnership by a separate gift or bequest (willed to, quit claimed, gifted etc), or after legal a separation, also it can be agreed to in writing to be owned by one spouse or domestic partner. In California, real property conveyed to a married person, or to a domestic partner is presumed to be "Community property", unless otherwise stated. Since all such property is owned equally (1/2 each), both parties must sign all agreements and documents transferring the property when using it as security for their home loan. With Community Property, theoretically 1/2 of the interest automatically passes to the remaining party, but each owner has the right to dispose of his/her one half of the community property utilizing a "Will" if they wish to do so. Example of parties to a Community property: Bruce Buyer and Barbara Buyer, husband and wife, as community property, or Sally Smith and Jane Smith, registered domestic partners as community property.
5) Community Property with Right of Survivorship: A form of vesting title as Community property owned and/or acquired by spouses or by domestic partners. This form of holding title shares many of the characteristics of community property but adds the benefit of the "right of survivorship". There may be tax benefits for holding title in this manner. On the death of an owner, the decedent’s interest ends and the survivor owns all interests in the property. For example: Bruce Buyer and Barbara Buyer, husband and wife, as community property with right of survivorship, or John Buyer and Bill Buyer, spouses, as community property with right of survivorship. Another example for same sex couples: Sally Smith and Jane Smith, registered domestic partners, as community property with right of survivorship.
6) Joint Tenancy: A form of vesting/acquiring title to property owned by two or more persons, who may or may not be married nor domestic partners, in equal interests, 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, a married man and George Buyer, a single man, as joint tenants. Note: If a married person enters into a joint tenancy that does not include their spouse, the title company insuring title may require the spouse of the married man or woman acquiring title in to specifically consent to the joint tenancy. The same rules will apply for same sex married couples and domesticpartners.
7) Tenancy in Common: A form of vesting title to property owned by any two or more individuals in 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 the income from the property and must bear an equivalent share of expenses. Key note: Each co-tenant may sell, lease or will to his/her heir that share of the property belonging to him/her. For example: Bruce Doe, a single man, has an undivided 3/4 interest and Penny Lane, a single woman, as to an undivided 1/4 interest.
Other ways of vesting/holding title include:
8) Trustee of a Trust: A Trust is an arrangement whereby legal title to property is transferred by a grantor to a person called a trustee. This Trust is to be held and managed by that person for the benefit of the people specified in the trust agreement. The individuals specified in the Trust are called the beneficiaries. A trust is generally not an entity that can hold title in its own name. Instead title is often vested in the trustee of the trust. For example: Jacob Buyer trustee of the Buyer Family Trust. The Trustee can also be a family member or friend.
9) A Partnership: A partnership is an association of two or more persons who can carry on a "business for profit" as co-owners. This arrangement is governed by the Uniform Partnership Act. A partnership may hold title to real property in the name of the partnership.
10) A Corporation: A corporation is a legal entity created under state law. Known as a body that has been granted a "charter" recognizing it as a separate legal entity, thus having its own rights, privileges, and liabilities distinct from those of its members or owners which commonly will consist of one or more shareholders. It is regarded under law as having an existence and is authorized to act as a single body/entity separate from such shareholders. A corporation is managed by a board of directors, which is responsible for making major business decisions and overseeing the general affairs of the corporation.
11) Limited Liability Companies (LLC): This form of ownership is a legal entity. Like a corporation, a limited liability company or "LLC", is a separate and distinct legal entity. This also means that an LLC can obtain a tax identification number, open a bank account and do business, all under its own name. The primary advantage of an LLC is that its owners, known as members, have "limited liability", meaning that, under most circumstances, they are not personally liable (as in a partnership) for the debts and liabilities of the LLC. The "operating agreement" will determine how the LLC functions and is taxed. Like the corporation its existence is separate from its owners.
Here is a link ⇒ CHARTED illustration of "Common ways to hold title" - Hopefully you will also find the chart helpful. And of course it is solely for your benefit in regards to being more informed. As they say "knowledge is power".
Whether you are a Buyer or a Seller, my experience tells me that you may have a question or two. If by chance you do, always know that I will certainly make it a point to make myself available for you. I can answer your questions in a matter of minutes and it would be my pleasure in doing so.
Broker Associate - REALTOR®