Forms of Real Estate Title
What is a Real Estate Title?
In real estate law, the term “title” refers to rights of ownership with regards to a piece of real property. A person who is said to have title to property or land owns certain rights of possession and usage in the property. There are several different forms that a title can come in. The form of real estate title often dictates several important aspects of property ownership, such as the transferability of the property.
What are the different Forms of Real Estate Titles?
There are four basic types of real estate titles. The difference between them has mainly to do with whether only one person possesses the property, or whether it is shared among more than one person. If the title is split between more than one person, possession is usually called “joint possession” of the property.
The different forms of basic real estate titles are Fee Simple, Joint Tenancy, Tenancy in Common, and Tenancy in the Entirety. Basic definitions for each are as follows:
- Fee Simple: A holder of title in fee simple absolute has complete, full possessory rights to the property, both at the present and in the future, for an infinite amount of time. There are generally no limitations placed on the inheritability of the property, and the holder in fee simple can sell their property in full or in part. They can also transfer the property by will at the time of their death. This is the most common form of real estate title.
- Joint Tenancy: In a joint tenancy title, there are two or more owners who hold an undivided share in the property. Joint tenancy usually implies a right of survivorship. This means that if one joint owner dies, then the surviving owners retain their undivided share of the property. Some states require joint tenants to expressly state whether a right of survivorship exists
- Tenancy in Common: Here, each individual owner also has an undivided interest in the property. However, unlike a joint tenancy, there is no right of survivorship. Also, each person holds a proportionate interest in the estate, which passes according to succession laws.
- Tenancy in the Entirety: This title is connected with marriage, as it can only be created by a husband and wife. It is similar to a joint tenancy, with the exception that the right of survivorship cannot be destroyed. A validly existing marriage is a prerequisite for this type of title. Many states have abolished this form of title and prefer married couples to assume a joint tenancy with right of survivorship.
Thus, in the list above, the last three (joint tenancy, tenancy in common, and tenancy in the entirety) involve joint possession. Some states presume that a transfer of a single property to several persons is considered a tenancy in common, with no right of survivorship. Only if the persons expressly state a right of survivorship does the title become a joint tenancy.
What does the Form of Title affect?
The form of real estate title can affect several different aspects of the property ownership. The most important of these aspects is transferability. Transferability of property refers to the title holder’s ability under law to transfer all or parts of the property to another person.
For example, a holder of a title in fee simple can transfer their entire property to another without restriction. However, title holders in a tenancy in common may be restricted with regards to property transfers. Depending on the laws of the jurisdiction, they may or may not be able to transfer their share of the property to another person. They definitely cannot transfer another tenant’s share without their permission.
The laws covering real estate titles vary widely depending on the state and the type of property involved. Also, each state may vary with regards to how titles are acquired. You may wish to research your local property laws to determine how the different forms of title affect property rights. If you still have questions you may wish to consult with an experienced real estate lawyer.
Do I need a Lawyer for issues with the different Forms of Real Estate Titles?
It is important that you understand what the various real estate titles are and how they will affect a holder’s property rights. You may wish to obtain the services of a lawyer if you will be acquiring title to a property, or if you wish to transfer your property interests to another party. Your real estate attorney will be able to advise you on the laws of your state. Also, if a dispute arises with regards to the title, your lawyer can provide you with representation and help protect your property interests.
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Last Modified: 09-28-2012 04:40 PM PDT
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