March 11, 2019
Ways to Take Title
Title in a parcel of real property is what we convey in order to pass ownership between one person (or entity) and another. But this form of ownership can take a number of shapes, each of which comes along with its own set of rights and obligations.
There are five methods of holding title which we see quite often—they far and away outnumber the other, outlying methods. These are sole ownership, joint tenancy, tenancy in common, tenants by entirety, and (in some jurisdictions) community property. The basic features of each is described below.
- Sole Ownership – The platonic case of ownership, in which a single individual holds title to a property, and no other party need be consulted in order for the property to be transferred. Generally this applies to either single individuals or married people holding property apart from their spouses (in which case the non-owning spouse is usually required to specifically relinquish any rights of ownership), or to corporate businesses. Things can get murky in passing title in this case when a person dies with no clear will or becomes incapacitated.
- Joint Tenancy – Here two or more people hold ownership in a property, with equal rights and duties toward it. Should one or more of the owners die, those still living automatically receive the rights and duties of those who have passed. There is no requirement of marriage or familial relation between owners, but when one (or more) owner wishes to divest their title in the property they must petition the court to divide it or order its sale. A creditor of one of the owners may also petition the court to do the same, which then divests the other owners of their continued enjoyment of the property.
- Tenancy In Common – Similar to joint tenancy, except that here owners possess their portions of title individually, meaning they can divest or use it at will, without the permission of the other owners or of the court. At death, ownership transfers to heirs. Creditors may only touch the portion of their debtor’s ownership in the property. But for total transfer of the parcel of property to take place, any and all liens must be cleared.
- Tenants By Entirety – Applies only in the case when the property’s tenants are legally married, because the assumption here is that the owning couple is a single person where the law is concerned. Title transfers completely to the remaining spouse in the case that one spouse dies – there is no requirement of will for transfer of ownership from one to the other. In the case of divorce, this form of property usually converts to tenancy in common.
- Community Property – This is the standard form of property ownership by married couples in everything except real estate—it is assumed that where property is acquired by either spouse (other than through inheritance or gift) it is considered legally to belong to both of them. Here, either spouse may dispose of half of the property or will it to someone else. Some states outside our service area have decreed that this applies as well to real property: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
However one takes title to a piece of property, at Topouzis & Associates, P.C. we do extensive title search work in Rhode Island, Massachusetts, and Florida to ensure that no defects in title arise to prevent an owner’s full enjoyment of the property under the chosen form of ownership. Contact us if you have any questions or if you would like our considerable experience in dealing with the particularities the real estate system.