Ways of Holding Title

​​​TENANCY IN COMMON

JOINT TENANCY

COMMUNITY PROPERTY

COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP

Who can take title?

Any number of persons (can be husband and wife)

Any number of persons (can be husband and wife)

Only husband and wife

Only husband and wife

How is ownership divided?

Ownership can be divided into any number of interests, equal or unequal

Ownership interests must be equal

Ownership interests must be equal

Ownership interests must be equal

Who holds the title?

Each co-owner has a separate legal title to his undivided interest

Title to entire property is jointly held by the joint tenants

Title in the "community" (similar to title being in a partnership)

Title in the "community" (similar to title being in a partnership)

Who has possession?

Equal right of possession

Equal right of possession

Equal right of possession

Equal right of possession

How do owners convey their interest?

Each co-owner's interest may be conveyed separately by its owner

Conveyance by one co-owner without the others breaks the joint tenancy, and owners then become tenants in common

Both co-owners must join in conveyance of real property. Separate interests cannot be conveyed

Both co-owners must join in conveyance of real property. Separate interests cannot be conveyed

Purchaser's status    

Purchaser becomes a tenant in common with the other co-owners

Purchaser becomes a tenant in common with the other co-owners

Purchaser can only acquire whole title of community: cannot acquire a part of it

Purchaser can only acquire whole title of community: cannot acquire a part of it

What happens in case of death?

On co-owner's death, his interest passes by will to his devisees* or heirs. No survivorship right

On co-owner's death, his interest ends and cannot be willed. Survivor owns the property by survivorship

On co-tenant's death, if decedent leaves a will, title goes to decedent's devisee.* If not, title goes to the survivor

Decedent’s interest automatically passes to surviving spouse due to Right of Survivorship

What is the successor's status?

Devisees or heirs become tenants in common

Last survivor becomes sole owner

If passing by will, tenancy in common between devisee and survivor results

Surviving spouse becomes the sole owner

What is a creditor's interest?

Co-owner's interest may be sold on execution sale to satisfy his creditor. Creditor becomes a tenant in common

Co-owner's interest may be sold on execution sale to satisfy his creditor. Joint tenancy is broken. Creditor becomes tenant in common

Co-owner's interest cannot be seized and sold separately. The whole property may be sold to satisfy debts of either husband or wife

Co-owner's interest cannot be seized and sold separately. The whole property may be sold to satisfy debts of either husband or wife

What is the presumption of law?

Favored in doubtful cases except husband and wife (see community property)

Must be expressly stated and properly formed. Not favored

Strong presumption that property acquired by husband and wife is community

Strong presumption that property acquired by husband and wife is community

Is tax basis adjusted when first spouse dies?

Only to extent of deceased spouse's interest

Only as to half the property

Yes – entire property receives "stepped up" basis

Yes – entire property receives "stepped up" basis

* Note: a devisee is a person who receives real estate from another by will.

This is provided for general information only. The method of holding title (vesting) has certain significant legal and/or tax consequences and you are encouraged to obtain advice from an attorney and tax consultant or another qualified professional in this matter. 


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