The following is not legal advice but simply a description of some of the different methods that title can be held in real estate. If you need assistance simply contact me directly at [email protected]
Sole ownership is the first way to hold title. Basically, this means that one man or one women owns 100% of the property less the value of any property liens. However, it is not quite as simple as it sounds. Sole ownership can be held several ways. If you you are unmarried, you can hold sole title as an unmarried man, or unmarried woman, or a single man or single woman. Per the dictionary definition single man seems the same as unmarried man. However, some title company personnel insist that unmarried means now single but previously married, while single means single and never married. I have not found any documentation to support this, but have run into it on several occasions.
A person may also be married but hold sole and separate property in their name only. Laws vary between states, some of which are community property states, and some of which are not. However, generally, a person may hold sole and separate title to property even if married if the property was owned prior to marriage, purchased from separately owned money, or inherited as sole ans separate property. A prenuptial agreement can also identify separate property. Even if property in marriage begins as sole and separate, it can become community or joint property if separate assets are mingled. For example, if the mortgage on a separate property is paid with community money, or if separate bank accounts are merged, the property can become community. If single, no further research may be necessary. However, if you are married and trying to keep title separate, you should consult an attorney with expertise on state laws for the state you reside in.
Another form of title vesting is community property, used only in community property states, many of which developed their laws with some Spanish influence, mostly in sun belt states. Community property is a form of joint ownership for marital assets in community property states. Any property acquired during marriage using marital assets is generally considered community property in these states. Community assets are owned 50% each. As mentioned above, property owned separately, prior to marriage, can also be converted to community property using a quitclaim deed. They can also be mingled, in some cases unintentionally, resulting in all or part of the formerly separate property to become community property. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are community property states.
Some people use joint tenancy for title vesting in order to ensure more than one party has an undivided ownership stake in real estate title. As with other forms of title vesting, a quitclaim deed can be used to create a joint tenancy when a property is acquired or to add an owner after, either due to marriage or some other reason. Joint tenancy is used for marital assets in states not using community property, and can be used in community property states as well. Joint tenants are not limited to married couples. Any 2 or more parties can become joint tenants in a single property. Joint tenancy often includes right of survivorship. This means that if one joint tenant dies, their interest reverts to the other joint tenants. This can be identified on the quitclaim deed,for example as joint tenants with rights of survivorship to eliminate any uncertainly as to the intent of the parties. Laws vary on joint tenancy and rights of survivorship by state, so additional local research should be done for your state to determine if this is the right form of title for your needs.
Next, tenants in common is another way to hold title. This is also an undivided interest in property among 2 or more parties, and parties can be added or removed using a quitclaim deed. The biggest difference between tenants in common and joint tenants is generally that there are no rights of survivorship. In other words, if one tenant in common dies, their interest passes on to their heirs, either by will, trust, or intestate (without a will). This form of title vesting is often useful for non-married investment partners in real estate. Also, unlike community property or joint tenancy, each tenant in common’s interest in the property need not be equal.
Another form of title vesting is tenancy by the entirety. This is similar to joint tenancy between husband and wife, but each spouse owns the entire property rather than half. No one spouse can sell any portion of the property without the consent of the other. A benefit of this form of title vesting is that if a creditor is owned money by one of the owners, the creditor cannot collect against the property unless the spouse dies who does not owe the creditor. The surviving spouse owns the entire property with no probate required. However, if one spouse becomes unavailable or incompetent, it can be difficult for the other spouse to sell the property under this form of title vesting.
