TITLE VESTING Common ways to hold title to real property
AS AN INDIVIDUAL An individual may hold title in his or her name only, regardless of whether or not married – e.g. “Jane Smith, an individual”. That individual then owns all rights to the property, which can be sold or transferred to others via will or trust. While a divorce is pending, however, if the property was acquired during the marriage it will likely be treated as part of the marital estate and thus be subject to court authority. AS TENANTS BY THE ENTIRETY A conveyance to a husband and wife creates a tenancy by the entirety – e.g. “John Smith and Jane Smith, husband and wife, as tenants by the entirety”. This creates a survivorship estate, which means that if one spouse dies, his/her interest will automatically go to the surviving spouse. A husband and wife may also take title as tenants in common (discussed below) if the intention to hold title in that manner is expressly stated. AS TENANTS IN COMMON Unless a conveyance expressly provides that the parties intend to create a survivorship estate (discussed below), a conveyance to two or more persons who are not married creates a tenancy in common in which each has (unless otherwise stated) an equal undivided interest in the property – e.g. “John Smith and Robert Jones, as tenants in common, each as to an undivided 50% interest”. Each tenant in common then owns an undivided interest in the entire property, which can be sold or transferred to others via will or trust. AS A SURVIVORSHIP ESTATE Two or more persons who are not married may also hold title as tenants in common with a right of survivorship, as long as the survivorship declaration is expressly contained in the deed – e.g. “John Smith and Robert Jones, not as tenants in common, but with the right of survivorship”. This creates a survivorship estate, which means that if one party dies, his/her interest will automatically go to the survivor and cannot be sold during the lifetime of or transferred via will or trust by the party who dies first. AS REGISTERED DOMESTIC PARTNERS Registered domestic partners may take title as (i) tenants in common– e.g. “Jane Smith and Mary Jones, registered domestic partners, as tenants in common, each as to an undivided 50% interest”, or (ii) in a survivorship estate similar to that of a tenancy by the entirety – e.g. “Jane Smith and Mary Jones, as registered domestic partners with right of survivorship”. AS A SAME SEX MARRIED COUPLE Same sex married couples may take title as (i) tenants in common – e.g. “John Smith and Robert Smith, a married couple, as tenants in common, each as to an undivided 50% interest”, or (ii) in a survivorship estate similar to that of a tenancy by the entirety – e.g. John Smith and Robert Smith, a married couple with right of survivorship, or (iii) as tenants by the entirety – e.g. “John Smith and Robert Smith, a married couple, as tenants by the entirety”. AS AN ENTITY A registered entity, such as a corporation, limited liability company or partnership, may hold title. Title should be held exactly as the name is registered with the Oregon Secretary of State – e.g. “Smith & Jones, LLC, an Oregon limited liability company”.
DISCLAIMER – The foregoing contains informational examples only and is not to be construed as legal advice. Given the complexities involved in acquiring and holding legal title to real property, WFG strongly recommends that you seek legal advice from an attorney prior to doing so.
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