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Holding Title to Real Property

Ways to Hold Title to Real Property

Tenants in Common Joint Tenants Community Property with Right of Survivorship  (effective 7/1/01) Partnership
Parties Any number of persons (can be husband and wife). Any number of persons (can be husband and wife). Only husband and wife. Any number of individuals of other legal entities.
Division Ownership can be divided into any number of interests, equal or unequal. Ownership interests must be equal. Ownership interests are equal. Ownership interests of partners is in relation to interest in the partnership.
Title Each co-owner has a separate legal title to his/her undivided interest. There is only one title to the whole property. Title is in the "community." Each interest is separate but management is undefined. Each co-owner's interest is owned in partnership for partnership purposes.
Possession Each co-owner has equal right of possession. Equal right of possession. Equal right of possession Equal right of possession for partnership purposes. No right of possession for any other purposes except by mutual consent.
Conveyance Each co-owner's interest may be conveyed separately by its owner. Conveyance by one co-owner without the others breaks the joint tenancy, provided it is recorded prior to death. Both co-owners must join in conveyance of real property. Separate interest cannot be conveyed. Partner's individual interest in specific property can not be conveyed separately. Any authorized partner or partners can convey the whole partnership title.
Purchaser Status Purchaser will become a tenant in common with the other co-owners in the property. Purchaser will become tenant in common with the other co-owners in the property. Purchaser can only acquire the whole title of community (cannot acquire part of it). Purchaser can only acquire the whole title if he or she becomes a partner.
Death On co-owner's death his/her interest passes by will to his or her heirs or devisees. No right of survivorship. On co-owner's death, his/her interest ends and cannot be disposed of by will. Survivor owns the property by right of survivorship. On co-owner's death, 1/2 belongs to survivor, 1/2 goes by will heirs or devisees or by succession to survivor, except in the case where the title is held as "Community Property With Right Of Survivorship." In that event, title passes to the survivor by right of survivorship. On partner's death, the partner's interest in specific partnership property may vest in the surviving partners. The value realized out of its liquidation is accounted for in the partner's estate.
Successor Status Devisees of heirs become tenants in common. Last survivor owns property in severalty. If passing by will, tenancy in common between devisees and survivor results. Otherwise, survivor owns property in severalty. Devisees of heirs have no rights in specific partnership property.
Creditor's Rights Co-owner's interest may be sold on execution sale to satisfy his/her creditors. Creditor becomes tenant in common. Co-owner's interest may be sold on execution sale to satisfy 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 on execution sale to satisfy a creditor. Partner's interest cannot be seized or sold separately by the partner's personal creditor. The partner's share of profits may be obtained by personal creditor. Whole property may be sold on execution sale to satisfy partnership creditor.
Presumption Court will presume tenancy in common if not expressly stated as husband and wife Must be expressly stated in writing. Court will not presume joint tenancy. Strong presumption the property acquired by husband and wife is community. Arises by virtue of partnership status in specific property held in partnership.

(© Pat Crouch, Investors Title Company, 2001)