By Bruce Cathcart
Last week I wrote about escrow and how escrow companies were neutral third parties that coordinated all of the paperwork and participants in a real estate transaction as well as performed the final accounting. One of the most important aspects of every escrow is how buyers will hold title to their property.
When you take title to a car you put your name on the pink slip and it is recorded with the DMV. When you take title to a home or other piece of real estate you put your name on a deed and it is recorded with the county recorder’s office. Just as how you put your name on the pink slip when purchasing a car (John “AND” Jane Doe vs. John “OR” Jane Doe) can have serious ramifications, it is even more significant and complex as to how you put your name on the deed when you are purchasing a home. As a real estate broker I will describe the various ways in which individuals can hold title, but advising on which way is best for individuals to hold title is specific to each individual and is advice best sought from one’s legal and tax advisors.
For “sole ownership” single individuals fall into two categories, single and unmarried. If you have never been married you are single, if you have been married and legally divorced you are unmarried. John Doe a single man or John Doe an unmarried man would be examples of the two options here. Married individuals can also take title as sole owners such as John Doe, a married man, as his sole and separate property; however, John’s spouse must consent and relinquish all right, title and interest in the property by deed or other written instrument. This is usually accomplished by recording a “Quit Claim Deed” at the time of the purchase.
Co-ownership involves more than one owner on title and has many more options available. Only married individuals can take title as “Community Property” (John Doe and Jane Doe, husband and wife, as community property). In California a home purchased by a husband and wife is presumed to be community property with ownership interests being equal; however, many married individuals prefer to hold title as “Joint Tenants” (John Doe and Jane Doe, husband and wife, as joint tenants). Interests are equal but the main difference is known as the “right of survivorship”. Simply put, if one spouse dies ownership of the property automatically goes to the surviving spouse without the need for a will or other instrument or devise. Individuals do not need to be married to hold title as joint tenants to take advantage of this benefit as long as interests are equal. Oftentimes we see family members or unmarried couples hold title as joint tenants. Another common method of married couples is to hold title in the name of their “Trust” (The John and Jane Doe Family Trust created 10/10/2013). In California any property can be held in a trust and individuals do not need to be married to create one. The Trustee holds title subject to the terms of the trust for the benefit of the Trustor/beneficiary.
“Tenancy in Common” refers to when two or more individuals own a property with undivided interests in equal or unequal percentages of ownership (John Doe, a single man, with an undivided ½ interest and Jim Jones, a single man, with an undivided ¼ interest, and Bill Smith, a single man, with an undivided ¼ interest). There is no right of survivorship and each tenant owns an interest which upon their death goes to their heirs or devisee.
These are some of the common ways that title may be held. There are several variations and combinations in which title may be held in each type of ownership. For more information and a really great chart that compares the different ways to hold title go to https://www.fntic.com/commontitle.aspx.
This week’s real estate tip: Your real estate agent can provide you information about how title may be held but your attorney and tax advisor are the ones to advise you specifically as to the legal and tax ramifications of each type of ownership. Do not hesitate to seek their advice prior to submitting to escrow the way in which you want your name to appear on your deed.
Bruce Cathcart is the Broker/Co-Owner of La Quinta Palms Realty, “Your Friendly Professionals” and can be reached by email at email@example.com or visit his website at www.laquintapalmsrealty.com.