“Taking Title” or “Vesting” of Real Estate in California

Joint Buyers of Bay Area Homes and Real Estate should be aware of the following:

Taking Title or Vesting in California Real EstateLasting relationships are built on clear communications and transparency. Let’s say that you and someone else, i.e. your husband, wife, friend, partner(s), want to by a home or some other real estate for personal use or investment. If, for some reason, there is a “parting of the ways” it is important to who owns what. In other words, if you are buying a home or other real estate with someone else, it is very important to know how to “take title,” or how “title is vesting.”

When two single people (or multiple parties) want to buy a home or other real estate in California, they can take title to the property as “Joint Tenants” or Tenants in Common.”

California Joint Tenancy

Taking title as Joint Tenants means that both buyers own one hundred percent (100.00%) of the property, regardless of how much money each Joint Tenant paid when the home or property was purchased. In California, before the death of a joint tenant, either joint tenant may “sever” or destroy the “Joint Tenancy” buy selling, giving, or otherwise transferring his or her interest in the property.   The value of the transferred interest will likely be determined by the amount of money the “Transferring Tenant” paid toward the purchase of the property. If the Joint Tenancy is not severed, and one of the Joint Tenants dies, the remaining Joint Tenant automatically owns all of the home or property. The transfer of the home or property to the remaining Joint Tenant occurs “by operation of law,” and no “Will” or court supervision, known as “Probate,” of the deceased Joint Tenant is required. This is called the “right of survivorship.”
For example, assume that you and a close friend by a $1,000,000 personal residence together. You pay $600,000 toward the purchase; your friend pays $400,000, and “vesting is in both of your names as Joint Tenants.   If neither of you severs the Joint Tenancy, and one of you passes away, the remaining Joint Tenant will automatically own 100.00% of the property.

California Tenancy-In- Common

In a California Tenancy-In-Common, there is no “right of survivorship.” Taking title as Tenants-In-Common means that each buyer owns some percentage of the property. When multiple buyers of a home or other real estate in California take title as Tenants-In-Common, they should describe the terms of their respective ownership in a “Tenancy-In-Common (TIC) Agreement”. If one of the Tenants-In-Common dies, the remaining Tenant-In-Common does not automatically own all of the home or property. The “deceased tenant’s” heirs will inherit some percentage of the home or property.   Each Joint Tenant may designate in a Will or Declaration of Trust, who gets the deceased tenant’s portion of the home or property.

Let’s change the previous example.  Assume that you and a close friend by a $1,000,000 investment property together. You pay $600,000 toward the purchase; your friend pays $400,000, and “vesting is in both of your names as Tenants-In-Common.” You also have a TIC Agreement that says you own 60.00% of the property and your friend owns 40.00%. If one of you unfortunately dies, the remaining Joint Tenant will not automatically owe all of the property. The heirs of the deceased Tenant-In-Common will own 40.00% of the property.

California Community Property

When a married couple buys a home or real estate in California, they have the option of taking title as “Community Property” or “Community Property with the Right of Survivorship.” These options give married couples a tax advantage known as a “full step-up in basis” that is not available to Joint Tenants or Tenants-In Common.

More Than Mere Salesmanship

The above discussion is a brief summary and illustration of how to take title. Real estate and tax laws are complex. Real life situations require expert guidance about how these laws apply to your situation. A consultation with a real estate professional who has the knowledge and credentials to offer “more than mere salesmanship,” is imperative. Please contact Frank Gerald Adam, Esq., CPA, Licensed Real Estate Broker.

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