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Common Ways of
Holding Title
How Should I Take Ownership of
the Property I am Buying?
Real property has become increasingly more valuable and the question of how
parties can take ownership of their property has gained greater importance.
The form of ownership taken -- the vesting of title -- will determine who
may sign various documents involving the property and future rights of the
parties to the transaction. These rights involve such matters as: real
property taxes, income taxes, inheritance and gift taxes, transferability of
title and exposure to creditor's claims. Also, how title is vested can have
significant probate implications in the event of death.
The Land Title Association (LTA) advises those purchasing real property to
give careful consideration to the manner in which title will be held. Buyers
may wish to consult legal counsel to determine the most advantageous form of
ownership for their particular situation, especially in cases of multiple
owners of a single property.
The LTA has provided the following definitions of common vestings as an
informational overview. Consumers should not rely on these as legal
definitions. The Association urges real property purchasers to carefully
consider their titling decision prior to closing, and to seek counsel should
they be unfamiliar with the most suitable ownership choice for their
particular situation.
Common Methods of Holding Title
SOLE OWNERSHIP
Sole ownership may be described as ownership by an individual or other
entity capable of acquiring title. Examples of common vestings in cases of
sole ownership are:
1. A Single Man/Woman:
A man or woman who has not been legally married. For example: Bruce Buyer, a
single man.
2. An Unmarried Man/Woman:
A man or woman who was previously married and is now legally divorced. For
example: Sally Seller, an unmarried woman.
3. A Married Man/Woman as His/Her Sole and Separate Property:
A married man or woman who wishes to acquire title in his or her name alone.
The title company insuring title will require the spouse of the married man
or woman acquiring title to specifically disclaim or relinquish his or her
right, title and interest to the property. This establishes that it is the
desire of both spouses that title to the property be granted to one spouse
as that spouse's sole and separate property. For example: Bruce Buyer, a
married man, as his sole and separate property.
CO-OWNERSHIP
Title to property owned by two or more persons may be vested in the
following forms:
1. Community Property:
A form of vesting title to property owned by husband and wife during their
marriage which they intend to own together. Community property is
distinguished from separate property, which is property acquired before
marriage, by separate gift or bequest, after legal separation, or which is
agreed to be owned only by one spouse.
Real property conveyed to a married man or woman is presumed to be community
property, unless otherwise stated. Since all such property is owned equally,
husband and wife must sign all agreements and documents of transfer. Under
community property, either spouse has the right to dispose of one half of
the community property, including transfers by will. For example: Bruce
Buyer and Barbara Buyer, husband and wife as community property.
2. Joint Tenancy
A form of vesting title to property owned by two or more persons, who may or
may not be married, in equal interest, 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 and Barbara Buyer, husband
and wife as joint tenants.
3. 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. Each
co-tenant may sell, lease or will to his/her heir that share of the property
belonging to him/her. For example: Bruce Buyer, a single man, as to an
undivided 3/4 interest and Penny Purchaser,
a single woman, as to an undivided 1/4 interest, as tenants in common.
Other ways of vesting title include as:
1. A Corporation*:
A corporation is a legal entity, created under state law, consisting of one
or more shareholders but regarded under law as having an existence and
personality separate from such shareholders.
2. A Partnership*:
A partnership is an association of two or more persons who can carry on
business for profit as co-owners, as governed by the Uniform Partnership
Act. A partnership may hold title to real property in the name of the
partnership.
3. As Trustees of A Trust*:
A trust is an arrangement whereby legal title to property is transferred by
the grantor to a person called a trustee, to
be held and managed by that person for the benefit of the people specified
in the trust agreement, called the beneficiaries.
4. Limited Liability Companies (L.L.C.)
This form of ownership is a legal entity and is similar to both the
corporation and the partnership. The operating agreement will determine how
the L.L.C. functions and is taxed. Like the corporation its existence is
separate from its owners.
*In cases of corporate, partnership, L.L.C. or trust ownership - required
documents may include corporate articles and bylaws, partnership agreements,
L.L.C. operating agreement and trust agreements and/or certificates.
Remember:
How title is vested has important legal consequences. You may wish to
consult an attorney to determine the most advantageous form of ownership for
your particular situation.
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