Check with your lawyer for your situation
Tenancy in Common
Parties
Any number of persons (can be husband and wife, but see “Presumption” limitations below)
Division
Ownership can be divided into any number of interests equal or unequal.
Title
Each co-owner has a separate legal title to his undivided interest.
Possession
Equal right of possession (only unity of interest required).
Conveyance
Each co-owner’s interest may be conveyed separately by its owner. Tenancy in common dissolved by conveyance of co-tenant interest to another new tenancy in common is created between grantees and remaining co-tenants.
Purchaser’s Status
Purchaser will become a tenant in common with the other co-owners in the property.
Death
On co-owner’s death, his interest passes by will to his devises or his heirs by intestate succession. No survivorship right.
Successor’s Status
Devisees or heirs become tenants in common.
Creditor’s Status
Co-owners’ interest may be sold on execution sale to satisfy his creditor. Creditor becomes a tenant in common with remaining co-tenants. Termination may occur as a result of involuntary sale (e.g., execution sale under a judgment or a foreclose sale under a mortgage or deed of trust).
Presumption
Favored in doubtful cases except husband and wife case. Reference to husband and wife in the deed of sale, without mention of any other form of ownership, creates statutory presumption that the property is community in nature.
Joint Tenancy
Parties
Any number of persons (can be husband and wife).
Division
Ownership interest must be equal.
Title There is only one title to the whole property. (Joint ownership in undivided equal shares.)
Possession
Equal right of possession. A joint tenant can be in exclusive possession of the property or he can lease his interest to a third party without affecting the nature of the joint tenancy. Such lease will terminate upon the death of the lessor joint tenant, with the surviving joint tenants taking the interest therein.
Conveyance
Conveyance by one co-owner without the others breaks his joint tenancy.
Purchaser’s Status
Purchaser will become a tenant in common with the other co-owners in the property.
Death
If more than two joint tenants, upon the death of one joint tenant, title to the property passes to the surviving joint tenants by operation of law who hold title to the property in equal undivided shares to the exclusions of the heirs and creditors of the deceased joint tenant. If there are only two joint tenants and one joint tenant dies, the survivor holds title to the property as his sole and separate property. Joint tenancy ownership cannot be disposed of by testamentary disposition and it does not pass to the heirs of the decedent by intestate succession.
Successor’s Status
Upon death of one joint tenant, survivor joint tenant(s) continue in ownership of entire property including share of the deceased joint tenant. Surviving joint tenant(s) continue to own entire title, including former title interest of the deceased joint tenant.
Creditor’s Status
Mortgage or deed of trust executed by one joint tenant or a judgment lien against interest of one joint tenant, does not sever joint tenancy or affect right of survivorship unless property is sold by foreclosure or execution sale prior to death of the party who incurred the lien.
Presumption
Must be expressly stated in deed (not orally).
Community Property
Parties
Only husband and wife.
Division
Ownership and managerial interests are equal, except control of business is solely with managing spouse.
Title
Title is in the “community”.
Possession Both co-owners have equal management and control with similar absolute power of disposition.
Conveyance
A spouse may not make a gift of or dispose of community personal property without valuable consideration and written consent of the other spouse; “Necessaries” (furniture, furnishings, or fittings of the home, or the clothing or wearing apparel of the other spouse or minor children) may not be disposed of without the written consent of the other spouse.
Purchaser’s status
Purchaser can only acquire whole title of community, cannot acquire a part of it.
Death
On co-owner’s death, 1/2 belongs to survivor as separate property. 1/2 goes by will to decedent’s devisees or by succession to survivor.
Successor’s Status
If passing by will, tenancy in common between devisees and survivor results.
Creditor’s Status
Community property is general liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has management and control of the property or which spouse is party to the debt. Earnings of married person during marriage are not liable for pre-marital debt of other spouse if earnings from which debt is paid remains uncomingled with other community property and held in account where other spouse does not have access; community not liable for debts incurred subsequent to separation. Earnings of a spouse are not liable for the debts of the other spouse contracted before the marriage.
Presumption
Generally, all real property in this state and all personal property wherever situated acquired during marriage
by a married person while domiciled in this state is community property. Presumption does not apply to property acquired before marriage by gift, bequest, devise or descent.
Tenancy in Partnership
Parties
Only partners (any number(s))
Division
Ownership interest is in relation to interest in partnership.
Title
Title is in the “partnership”.
Possession
Equal right of possession but only for partnership purposes, absent consent of other partners to the contrary. The partnership property belongs to the firm and not the individual partners.
Conveyance
Any authorized partner may convey whole partnership property. No partner may sell or assign his interest in specific partnership property without the consent of and in conjunction with all co-partners.
Purchaser’s Status
Purchaser can only acquire the whole title.
Death
On partner’s death, his partnership interest passes to the surviving partner pending liquidation of the partnership share of the deceased partner then goes to his estate.
Successor’s Status
Heirs or devises have rights in partnership interest but not in specific property.
Creditor’s Status
Partnership real estate is treated as personal property and may be sold to pay debts. If the interests of creditors will not be adversely affected, in lieu of sale of the property, the partners may be awarded their respective interests in the property or it may be partitioned. Creditors receive priority in payment of partnership liabilities, a partner’s right in specific partnership property is not subject to attachment or execution, except on a claim against the partnership.
Presumption
Arises only by virtue of partnership status on property placed in partnership. Partner’s interest cannot be seized or sold separately by his personal creditor, but his share of profits, may be obtained by a personal creditor. Entire property may be sold on execution sale to satisfy partnership creditor.
Community Property With Right of Survivorship
Parties
Only husband and wife.
Division
Ownership and managerial interest are equal, except control of business is solely with managing spouse.
Title
Title is in the “community”.
Possession
Both co-owners have equal management and control with similar absolute power of disposition.
Conveyance
A spouse may not make a gift of or dispose of community property without valuable consideration and written consent of the other spouse; “Necessaries” (furniture, furnishings, or fittings of the home, or the clothing or wearing apparel of the other spouse or minor children) may not be disposed of without the written consent of the other spouse.
Purchaser’s Status
Purchaser can only acquire whole title of community, cannot acquire a part of it.
Death
Upon the death of one spouse, title to the property passes to the surviving spouse by operation of law, to the exclusion of the heirs and creditors of the deceased spouse. The survivor holds title to the property as his sole and separate property. Community property with right of survivorship cannot be disposed of by testamentary disposition, and it does not pass to the heirs of the decedent by interstate succession.
Successor’s Status
Upon death of one spouse, survivor continues in ownership of entire property including share of the deceased spouse. Surviving spouse continues to own entire title, including former title interest of deceased spouse.
Creditor’s Status
Community Property is generally liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has management and control of the property or which spouse is party to the debt. Earnings of married person during marriage are not liable for pre-marital debt of other spouse if earnings from which debt is paid remains uncommingled with other community property and held in account where other spouse does not have access; community property not liable for debts incurred subsequent to separation. Earnings of a spouse are not liable for the debts of the other spouse contracted before the marriage.
Presumption
Deed must expressly vest title in the name of the spouses as “husband and wife as community property with right of survivorship” and deed may be signed by the grantees.
The Home Team Girls Realtors® Real Estate Team helping you with Homes For Sale, Seller Strategies, Certified Buyer’s Agent, Bank Foreclosure Specialist, Short Sale Specialist. We use the service of a certified Home Stager on all of our listings. For Roseville and Sacramento Realtor Services call on the Home Team Girls.
