| |
TENANCY IN COMMON |
JOINT TENANCY |
COMMUNITY PROPERTY |
| Who can take
title? |
Any number of persons
(can be
husband and wife) |
Any number of persons
(can be
husband and wife) |
Only husband and wife |
| How is
ownership divided? |
Ownership can be divided into any
number of interest, equal or unequal |
Ownership interests must be
equal |
Ownership interests are
equal |
| Who holds the
title? |
Each co-owner has a separate legal
title to his undivided interest |
Title to entire property is
jointly held by the joint tenants |
Title in the "community" (similar
to title being in a partnership) |
| Who has
possession? |
Equal right of
possession |
Equal right of
possession |
Equal right of
possession |
| How do owners
convey their interest? |
Each co-owner’s interest may be
conveyed separately by its owner |
Conveyance by one co-owner without
the others breaks the joint tenancy, and owners then become tenants in
common |
Both co-owners must join in
conveyance of real property. Separate interests cannot be
conveyed |
| Purchaser’s
status |
Purchaser becomes a tenant in
common with the other co-owners |
Purchaser becomes a tenant in
common with the other co-owners |
Purchaser can only acquire whole
title of community: cannot acquire a part of it |
| What happens in
case of death? |
On co-owner’s death, his interest
passes by will to his devisees* or heirs. No survivorship right |
On co-owner’s death, his interest
ends and cannot be willed. Survivor owns the property by
survivorship |
On co-tenant’s death, if decedent
leaves a will, title goes to decedent’s devisee.* If not, title goes to
the survivor |
| What is the
successor’s status? |
Devisees or heirs become tenants
in common |
Last survivor becomes sole
owner |
If passing by will, tenancy in
common between devisee and survivor results |
| What is a
creditor’s interest? |
Co-owner’s interest may be sold on
execution sale to satisfy his creditor. Creditor becomes a tenant in
common |
Co-owner’s interest may be sold on
execution sale to satisfy his creditor. Joint tenancy is broken. Creditor
becomes tenant in common |
Co-owner’s interest cannot be
seized and sold separately. The whole property may be sold to satisfy
debts of either husband or wife. |
| What is the
presumption of law? |
Favored in doubtful cases except
husband and wife (see community property) |
Must be expressly stated and
properly formed. Not favored |
Strong presumption that property
acquired by husband and wife is community |
| Is tax basis
adjusted when first spouse dies? |
Only to extent of deceased
spouse’s interest |
Only as to half the
property |
Yes – entire property receives
"stepped up" basis |
