Holding Title To Real Estate

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A Comparison of Three Different Methods

Community PropertyJoint TenancyTenancy In Common
PartiesOnly husband and wife.Any number of persons (Can be husband and wife).Any number of persons (Can be husband and wife).
ConveyanceBoth co-owners must join in conveyance of real property. Separate interests cannot be conveyed.Conveyance by one co- owner without the oth- ers breaks the joint ten- ancy.Each co-owner’s inter- est may be exchanged or sold separately by each owner.
Creditor's Rights
Co-owner’s interest cannot be seized and sold separately. The whole property may be sold to satisfy debts of either husband or wife, depending on the debt.Co-owner’s interest may be sold on execu- tion sale to satisfy creditor. Joint tenancy is broken, creditor be- comes tenant in com- mon.Co-owner’s interest may be sold on execu- tion sale to satisfy the creditor. Creditor be- comes tenant in com- mon.
DeathOn co-owner’s death, 1/2 goes to survivor in severalty. Up to 1/2 goes by will or succes- sion to
On co-owner’s death, the interest ends and cannot be willed. Survi- vor(s) own(s) the prop- erty by survivorship.On co-owner’s death, the interest passes by will to the devisee or heirs. No survivorship rights.
DivisionOwnership interests are equal.Ownership interests cannot be divided with- out breaking the joint tenancy.Ownership can be di- vided into any number of interests, equal or unequal.
TitleTitle is in the “community” (Similar to title being in a part- nership.)There is only one title to the whole property.Each co-owner has a separate legal title to their undivided interest which can be ex- changed or sold.

In any transaction, whether it’s a sale or a §1031 tax deferred exchange, it is important to understand the differences among the various ways of holding title to real estate. The above chart provides a quick overview of some common ways of holding title. Not all of these methods are available in every state and there are other methods which may be available. It is important to consult with your legal and/or tax advisors to discuss the advantages and disadvantages of these methods in respect to your specific real estate transaction.

By Dana Ash-McGinty

Dana Ash-McGinty is the Principal Broker of ASH | MCGINTY, a Washington, DC Real Estate Brokerage. This real estate maven has 15+ years experience in residential, commercial and land sales in addition to multi-state residential renovation, re-zoning, and condo conversion projects. A sought after real estate authority, she has been featured on CNN and in various real estate and financial publications. Dana is married to the highly esteemed Dr. Dana W. McGinty, a Washington, DC internal medicine physician and medical correspondent. They are often referred to as "The Danas".

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