In California, real estate buyers have several options for taking ownership of the property. This is an important topic to discuss with a real estate, escrow or title professional. As buying a home is one of the most important investments you will make, the question of how to take ownership is of great importance, as the form of ownership taking will determine who can sign documents involved with the property and the future rights of the parties in the transaction. This includes matters like income tax, inheritance taxes and transferability of title. It may also have probate implications if one of the parties passes away.
These definitions of common vestings are provided for your information. Bayside Escrow encourages you to consider your options and seek legal counsel if you are not sure which ownership option best suits your situation.
Sole ownership is ownership by an individual or a single entity capable of acquiring title in California. Examples include:
- A single man or woman, an unmarried man or woman or a widower or widow.
- A married man or woman as his/her sole and separate property. In this case, the title company will require the spouse of the married man or woman acquiring title to specifically relinquish his or her right, interest and title to the property.
- A domestic partner as his or her sole and separate property.
Title to property may be owned by two or more people in many forms.
Community property is a form of vesting title to property owned by married people or domestic partners. This is different from separate property, which is acquired before a marriage or partnership, after legal separation or agreed in writing to be owned by only one spouse.
In California, real estate that is conveyed to a married person is presumed to be community property unless stated otherwise. As all property is equally owed, both parties will be required to sign all documents and agreements that transfer the property or use it as security on a loan. Each owner also maintains the right to dispose of his or her half of the property by will.
Community property with right of survivorship is a form of title ownership in which the property is owned together by spouses or domestic partners. While this option shares many of the same features as community property, it adds the benefit of right of survivorship similar to title held in joint tenancy. This form of ownership may also have tax benefits. If the owner dies, the decedent's interest ends and the survivor will own all interests in the property.
Joint tenancy is a form of ownership for two or more people, who may or may not be married. Both owners share equal interest in the property subject to the right of survivorship in the surviving joint tenancy. For this option, the title must be acquired at the same time and the document must declare the intention to create a joint tenancy estate. When one of the owners dies, title to the property automatically falls to the surviving joint tenant and the property is not subject to disposition by will.
Tenancy in common refers to a property owned by two or more people with undivided fractional interests. These interests may be unequal in duration or quantity and may arise at separate times. Each tenant in common will own a portion of the property and is entitled to this portion of the income from the property and must bear an equal share of the expenses. Co-tenants may lease, sell or will their share of the property.
While the above are the most common forms of property ownership in California, there are other ways of vesting title. This includes limited liability companies, corporations, partnerships and trustees of a trust, which is an arrangement allowing title of a property to be transferred by a grantor to a trustee to be held and managed for beneficiaries.
How property title is vested carries serious tax and legal consequences, some of which may be different for same sex legally related couples. Bayside Escrow recommends consulting with a lawyer if you have any difficulty understanding these options or need assistance choosing the option that will be of the most advantage in your situation.