Manner of Holding Title to Real Property

The form and manner in which title to real property is held can have a substantial impact on your rights with regard to your property.

Unmarried sole owners of property will hold title as follows: "John Doe, a single man." If married, title will be held: "Jane Doe, a married woman as her sole and separate property." Sole owners can dispose of the entire property in any manner without restriction (i.e., by sale, will, gift, etc.).

If property is co-owned (meaning two or more owners), the parties rights are determined by the manner in which title is held. Co-owners can hold title as "tenants-in-common", "joint tenants", "community property", or "community property with the right of survivorship".

Co-owners who hold title as "tenants-in-common" each will own undivided interests, which may or may not be equal in quantity or duration. For example, John can own 60% of a parcel of land, while his friend Mike owns the remaining 40%, though each is equally entitled to possession of the entire parcel. Each party is entitled to their share of any income and must bear their proportionate share of the expenses. Each co-owner may unilaterally sell, lease, gift or will his or her interest and the new owner will become a tenant-in-common with the previous owner.

Co-owners can also be joint tenants, however the joint tenancy must be expressly stated in the deed and the interests must be equal in every regard (e.g., how acquired, quantity, and duration). The most notable feature of a joint tenancy is that the co-owners have the right of survivorship, meaning that when one joint tenant dies, title to the property is automatically conveyed to the surviving joint tenant(s). As such, joint tenancy property cannot be disposed of by will or trust. If one joint tenant transfers his interest, the joint tenancy is broken, and the new owner becomes a tenant in common with the other owners (who remain joint tenants as between themselves).

For the above methods of holding title, a business entity (i.e., a corporation, partnership, or LLC) or a trust may be the named owner instead of an individual.

"As community property" is a manner of holding title to property by a husband and wife during their marriage. In California, 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 and husband and wife must sign any transfer of, or loan against, the property. However, each spouse has the right to dispose of their one half of the community property, including transfers by sale, will, or gift.

"Community Property with Right of Survivorship" allows a husband and wife to own property together as described above, except that if either dies, the interest automatically passes to surviving spouse and not the estate of the deceased spouse.