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LEGAL NOTIONS DEEDS AND OWNERSHIP Akin to a pink slip for a car, a deed is a document evidencing ownership to real estate. In California, there are three types of deeds. They are the grant deed, the quitclaim deed, and the warranty deed. Of the three, the grant deed is the most common. It is used when the ownership interest in the property changes due to a sale, gift, exchange, or other transfer (such as a transfer into a living trust). There is an implied promise of good title in a grant deed. A warranty deed, when used, includes an express written promise (the warranty) by the owner that the owner has good title to pass. For those of you who have acquired property under a grant deed through an escrow process, that property is more than likely covered by title insurance issued by the title company that handled the escrow. This title insurance from the title company guarantees that the owner has good title and thereby eliminates the need for the owner him/herself to warrant (promise) good title. Often, a quitclaim deed is used by a person to release any rights that he/she may have in a property. For example, take the situation of a married couple who decide to sell property that had originally been deeded to just one of the spouses. Due to confusion arising from California's seemingly complex community property laws, frequently the spouse whose name is not on the original deed will not know whether he/she has an ownership interest in the property to transfer. A quitclaim deed from the unnamed spouse to the transferee will deed whatever interest the unnamed spouse may have in the property. The type of a deed one has is to be distinguished from the type of ownership interest one has. Ownership of property is either absolute or qualified. Ownership of property is absolute when a single person has 100% of the rights to the property (subject only to general laws). Ownership of property is qualified when it is shared with one or more persons; when the time of enjoyment of the property is deferred or limited; or when use of the property is in some way restricted. In our state, the most common forms of ownership of real estate by several persons are: the joint tenancy (with right of survivorship); the tenancy-in-common; community property; and a relatively new form of ownership called "community property with right of survivorship." All four of these forms of ownership are available to married spouses or registered domestic partners who are the co-owners. In situations where the co-owners are not married spouses or registered domestic partners, neither of the two community property forms of ownership are options. Where there is only one owner of the property, the owner holds the property as his/her sole property. Furthermore, if that sole owner is a married person or a registered domestic partner, then the property is the person's separate property, not community property. For a person who is neither married nor a registered domestic partner the concepts of separate property and community property do not apply. Different types of ownership interests will be the topic of my next column. << back to columns >> The information provided in this column is not intended to be legal advice but merely conveys general information related to the topic. © 2005-2007 Scott J. Preble, A Prof. Law Corp., Antioch, (925) 756-7111. www.PrebleLawFirm.com.
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The Preble Law Firm 3700 Delta Fair Blvd., Suite 210 Antioch, California, 94509-4074 Copyright © 2005-2007 The Preble Law Firm. All Rights Reserved. |
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