How You Own It
(Title and Vesting in San Francisco)
Whose Property Is It Anyway? Community Property, Joint Tenancy, Tenants in Common — But why are we talking about tenants?
Not a Royal Title, But a Vested Title
All the other stuff you’ve gone through up until this point is just the opening act for the headliner: The Title Deed Transfer between the Seller and the Buyer. So what does a vest have to do with anything?
Okay, we are not talking about clothes, but we are talking about the close (thought you would like that). But vesting in this context refers to the legal process by which the title of the property at the heart of the transaction is legally transferred from the buyer to the seller — the ownership transfer. Because property law places a great emphasis and reliance on formalistic legal traditions dating back to England, how the title is held by you and anyone who is buying the property matters very much in terms of what you can do with the property, what happens if you default, divorce, or die. And here you were thinking you were just buying a condo!
Eventually, all that's left in a sale is the signing. But what documents are you signing? Whose names will appear on the loan documents and title grant deed? Does it really matter?
Yes. It does matter. First, it's a matter of public record. And for most folks the actual deed transfer is a bit ho-hum compared to the drama that’s come before with open houses, debates on value, waiting for an offer's outcome, But how you hold title over your soon-to-be property tells the world that, yes, you do own the property but it also communicates how you own property and what happens to that property if you aren’t around to sell it or otherwise. Read on below.
Take it from me — a trained lawyer — who also happens to come from the most old-school of property law states in the country — Iowa. The laws governing property transfers, use and inheritance derive, like most places in the U.S., from English law. But as the UK and most other states evolved, Iowa hasn’t really moved away from notions like the rule against perpetuities. Indeed, in Iowa and other places east of the Rockies, you'll find that that most property law seems to focus around death and the disposal of your property ‘upon the death of...’ to X, or an estate to Y 'for the life of...'
And while California and many other states are far more liberal and progressive than states like Iowa, with property law, presumptions and equal rights between spouses, the obsession with what happens when things go south still permeates how you ‘hold’ title over your property here as it does there.
DISCLAIMER: OF COURSE, you should consult an estate, real estate and/or tax lawyer and/or the escrow folks if you have questions about what the various forms of ownership all mean and what implications each form has. While changes to the form of ownership are relatively simple to make — a quitclaim deed that gets recorded at the County Recorder’s Office — making changes may raise lender issues along with larger estate, tax and family law issues too.
Before we get started...
A few things you should know about title documentation and the closing process generally along with transfer taxes and the grant deed.
Who is Who
The transferor (the seller) will sign the same paper as the transferee (the buyer) before a notary public (so bring your thumbs and ID) in most cases. Most title officers and companies are public notaries themselves or have easy access to these folks
Title Jargon To Hold and To Vest
How you’re named on the title deed document is how you ‘hold’ title or how title is ‘vested.' Think about weddings and think about how marriage was also a property right thing way back when. This stuff is derived from this tradition.
CHANGING TITLE — WHO OWNS AND WHERE TO RECORD IT
If you get inherit property from your family members a spouse or get married, divorced or put your property into a living trust (a very good idea given how expensive property prices are here) there’s a simple form that you can complete and go to the Recorder’s Office to, well, record. But it’s easier (and probably better) to have a title company help you do this. There should be a nominal charge for a notary public’s services (like $50-100). Ask us for our title company recs if need be.
Title transfer documents usually include a property’s legal description, which the title company will have. The property description will take one of two forms: a description that refers to a book and page of a larger parcel map/land grant and then lay out the dimensions of the parcel, 25 west to X and then 100 feet to Y and so forth. Alternatively, condos and TICs will have different references to different documents that don’t necessarily contain measurements.
When Do We Sign? Who With?
At the heart of the sales process (or estate and inheritance process) is transferring ownership rights over a given property interest to a new entity whether it be a person, legal form or new person or entity. The actual document that does that is a deed transfer saying as such.
In San Francisco, the actual title transfer document is pretty straightforward. The one-page document will have a place for the address, assessor parcel number, the name of transferring party and the receiving party (usually a buyer and seller). There will be signature lines for each side. There will also be a document from the notary public who witnessed the signature(s) verifying the deed transfer document was signed in front of them.
The statement also says the notary confirmed your identity (photo ID or passport). The last part of the transfer documentation is a legal description of the property that the title company provides.
The documents are usually prepared by and signed at the title/escrow company. Do remember that notaries are mobile and can be sent anywhere for you to sign, which is what we saw a lot more of during and now after the Pandemic.
Transfer Taxes (i.e., a Stamp Tax)
Deed transfers are usually taxed by the county (the transfer tax or stamp tax as they are known in the UK). In San Francisco, the seller will pay the transfer tax with the exception of new construction where the buyers pay it as buyers and again as sellers. Other parts of the state have different practices and city-level taxes too, so check this detail out for your area.
The tax amount is usually based on the sale price. Precise tax amounts are based on a graduated formula. If the transfer is a sale is at $5 million or above there is a luxury tax bump, which is why many times you may get buyers paying agent commissions or other practices designed to avoid that tax. .
Many transfers like ones between spouses, family members, or from the property’s owners into a trust or company they own, for example, are usually likely exempt from any transfer tax but you should confirm if this is case. Note this tax is not you property tax rate even though property tax rates are usually based off your purchase price.
Where Does the Grant Deed Show Up?
The title deed transfer document package gets recorded with your local county Recorder, who usually scans the stamped copy showing the recording date along with locating information for the document (book number, etc). And yes, this is all public record (that’s where all that junk mail will come from).
Anyone can pull a scanned copy of ownership and mortgage documents online and the powers will also make the following information available: party names, addresses, parcel numbers, mortgage information and sale price.
If there are multiple parties and multiple parcels involved... Be Careful.
Pay attention and track named owners if you’re changing your vesting from one ownership form to another. If you take people off of title, you may run afoul of your mortgage and trigger a clause requiring full repayment if you’re not careful.
Also, check the escrow/lender’s work, i.e., are the right descriptions, APNs, and loans attached to the right property because fixing mistakes can take a long time.
We had one set of clients who condo converted their building. While they were paying off their mortgage and not getting a new one (as would need to happen in cases like these), their neighbor was. Problem was that the neighbor's lender recorded the new loan against the entire building again — including our client’s unit. This caused enough confusion in the first place but made worse when all the team members of the lender all got different jobs while trying to prepare revised documents for the neighbor’s loan.
A Little More on Transfer Taxes and Prorated Property Taxes ...
Implications, pt 1: Transfer Tax
In most cases, filing a deed transfer between buyers and sellers will trigger a property tax base reassessment except for cases like transferring a property into a trust or between spouses. There are other regulations and propositions that shield recipients a reassessment, e.g., from parent to child, grandparents to child, etc. but some of those rules have changed because of Proposition 19. Check in with a CPA, lawyer or us if you have questions if this is you.
Implications, pt 2: Capital Gains Tax
Assuming you are buying and selling through the process we talk about here on our website, there will be a title company involved. For sellers, the title company will issue the appropriate sale reporting documents showing your information (name and social), property information (address, APN) and sale price information to the California Franchise Tax Board and the IRS. These entities will link these filings with your income tax filings for the tax year the property sold, which will include the same information the title company sends (like a W2 or 1099 for example). It’s when you file is where you explain and provide documentation concerning any capital gains you may have earned from the sale and/or what adjustments you feel you are entitled to. If the property was an investment property and you did a 1031 tax-deferred exchange, there will be more forms specific to that. In any case, this is definitely an area to consult a tax professional on.
Implications, pt 3: Prorated Property Taxes
Property taxes can be confusing in San Francisco but good title companies will balance the monies going in and out of escrow and calculate down to the day of precisely what taxes are due and will prorate according to time of year and filing deadlines (December and April) ensuring that everyone only ever pays what they're supposed to pay according to the property’s closing date.
Ways to Hold Title When It’s Just You
A Single Man, A Single Woman, An Individual, As Seperate Property...
Dinner for one?
The property you're getting is all yours — 100%, which is all well and good unless and until you get married. Then you and your new spouse will have to have a talk about how to hold it going forward.
If you bought your property before you got married with money you earned or had beforehand and if you want to keep it segregated your new honey, they may have to disclaim potential ownership rights they get by virtue of marriage to it via quitclaim deed. Otherwise the presumption is that some or all of the property will become jointly owned— community property. If the relationship goes south (and it just may) and contentious, questions like dividing assets like property will turn on things like this and other factual items like who paid property taxes, mortgages and/or remodeling.
As Sole and Separate...
Ownership form where funds used to purchase property are an individual's or property remains segregated after marriage. (Also, if one spouse inherits property while the other doesn't, like from a family member).
Make sure there's proper estate planning in place for an excluded spouse or children; premnuptial agreement may not be bad idea either.
Ways to Hold Title Between Individuals
When It's More than Just You.
Spouses, Joint Tenants, Tenants in Common, Trustees, LLCs, Corporations
It's a regular dinner party!
Now You‘re Planning For Two, Three, Four or More People Who You May or May Not Be Married To
This is where it gets complicated (or not).
If you’re planning on holding title over property (i.e., owning) with someone else — your spouse, registered domestic partner, parents, siblings, investors, or other TIC partners, for example — you should be prepared to have a seemingly quick or incredibly awkward conversation about what will happen to that property if X or Y happens.
For example, if you’re an unmarried couple, how will you account for any unequal amount of purchase monies each person contributes for a down payment? (See the above discussion about quitclaim deeds) What if one party cannot be on title, or a relationship starts after one half of a couple already owns the property? In community property what happens if one spouse wants to bequeath their part of the property to someone else apart from the other spouse?
For unrelated owners what happens if one owner wants to borrow against the property’s value but the other has no idea that's happening and receives a loan notice one day? Take a look below for how TIC agreements and partnership agreements work.
In all cases, prudent property owners will either choose an ownership form where there are clear rules governing the disposition of property based on certain events or draft written agreements and/or estate planning documents that will define what happens when there’s a death, divorce or separation or otherwise.
Even if it's just the two of you, you still want to have estate planning documentation or marriage dissolution documents in place as you don't want to have to go through the time-consuming, non-private and expensive probate process where a judge supervises how an estate gets divided up.
Addressing issues like this even in the abstract in a proactive way before anything actually happens is an extremely important step you can take before we close escrow that can save you countless tax dollars and legal fees down the road lest you (or your heirs) resolve these issues in open court.
Community Property + Joint Tenancy
The most common ownership forms
Community Property, as Spouses, Husband and Wife, Husband and Husband, Wife and Wife, Domestic Partners
ALL THINGS BEING EQUAL
This is what you’d think it’d be in California: 50:50 — each person gets and is presumed to own half of the marital property. (Note there are different rules in common law states)
Formally, it’s known as “community property,” is a relatively newer, more equal concept in many states (but not all) whereby all the property acquired during a marriage/domestic partnership will be deemed to be held in equal shares by each spouse. The marriage/partnership creates a third actor, the ‘community,' (unless there’s a pre-nup or a quitclaim deed declaring the property as being ‘sole and separate,')
Within the community property context, the presumption is that if one spouse dies before the other, the dying spouse's half will go to the surviving spouse — hence community property with surviorship. While both spouses are alive, both spouses must approve a property’s sale together as they both control the property. Even if one spouse's name isn't on title, the presumption applies. The duty between spouses when it comes to the community's property is a fiduciary one to boot. This means that if a spouse is not informed about the transfer of community assets by the other spouse to someone else than the spouse, this could amount to a breach of that duty which can be undone by a court if it is deemed as fraud on community even if the transfer was unintentional.
Of course, this ownership form can get complicated if things break down between the spouses or if once formerly separate property gets commingled to the point where it's seemingly impossible to separate it out.
So what's the solution? We usually advise our clients that it's wise to have a trust of some kind in place if they have a lot of valuable assets that they want to have flexibility in controlling trust assets (such as property) and privacy.
Joint Tenants For the Time Being But....
EQUAL UP TO A POINT
As a joint tenant (owner), each owner will own an equal percentage of a property in conjunction with the other owner(s) — i.e., each will own an undivided interest in equal shares with equal rights over a property.
This means owners must simultaneously buy and assume title over the property in order to create a joint tenancy. The joint tenancy continues to exist so long as the status quo is maintained.
Apart from divorce and absent an estate plan, what happens if one owner dies before the other(s)?
There are two outcomes:
(1) if one owner dies and wills the property to anyone else other than the remaining owner, everyone will become tenants in common with the surviving owner;
(2) Absent that, the standard joint tenancy ownership form comes with a survivorship right that gives the decedent’s share the other surviving joint tenant(s) without the need for court proceedings known as probate.
Tenancy In Common (Think: Owners in Common)
OWNERSHIP IS FOR AN UNDIVIDED INTEREST IN A PROPERTY; PERCENTAGES STATED IN A CONTRACT OR BY LAW (OR A COURT)
At its core, ownership as tenants in common means that each owner owns an ‘undivided’ interest in the entire property. This can lead to all kinds of questions about how decisions are made regarding a property — upgrade it, keep it, sell it, refinance or use it as collateral. But the biggest questions come when it comes time to sell the property. If the owners don’t agree and there‘s no ownership (read: TIC) agreement, there are certain methods that apply to resolve the impasse and process, which usually involve court proceedings and a judge.
But that's not for here. Instead...
What about TICs on the market? Do they have TIC Agreements in place already?
When you see a TIC on the market there's usually a TIC Agreement in place or one will be created in order for the sale close. You shouldn't close without one either unless you're related or married to the other owners or have a separate written agreement.
These TIC agreements are usually done by one of 3-4 law firms in the City. The agreements themselves don't get recorded like a set of CC&Rs would for a condominium project, but certain memos of understanding and related documentation like Assumption and Release addenda may well get recorded.
Each time a TIC share changes hands, one of a handful of law firms in the City) will prepare a contract addendum that is referred to as an Assumption and Release for the buyer and seller, where the selling owner is released from TIC obligations and where the future owner assumes the seller’s position in the TIC ownership structure.
TIC agreements are, at their root, a contract where the various owners of a property set out to define what percentage of the property‘s title each owner has, how the HOA is run, who pays what property taxes and dues, and how units can be bought or sold.
And while a TIC may look like a condominium and effectively operate like one, a TIC Homeowner Association, is governed by a private contract. This is unlike a condominium situation where there are specific parts of California’s Civil Code that HOAs in California are meant to follow regarding records and budgeting.
It is vital that all the owners sign the relevant TIC agreement when there‘s a sale and when there are bigger administrative changes as there could be complications if you have an owner who‘s not bound by a TIC agreement. A non-signatory owner could, in theory, march into your unit and say it's theirs and there wouldn't be much you could do to stop them as they‘d own an undivided interest in the entire property.
Variation I. Corporate Forms
This is when a group of folks buy a property as an investment (an income property), for redevelopment purposes (the flip), or a business (a shop or restaurant). While the property is held by an LLC, LLP, Inc., Corp., and so on, the person signing the documents must be someone with the authority to do so — usually a manager, CEO, president, and so on. Each entity should have its own set of operating and governing documents that the escrow folks will usually ask to see to confirm signing authority to sell or buy property is legitimate.
Variation II. Family/Estate-Driven Forms
Perhaps the most useful, flexible and convenient ownership form for most couples and families who purchase property is some kind of living/revocable trust. While we've alluded to them above, the short and long of a trust is that it's a created entity governed by state law. There are certain duties and expectations placed on a trust that go beyond the scope of this discussion but suffice to say you can always convey or place a piece of property into a trust via quitclaim deed so long as doing so doesn't trigger any lending or community issues. The title folks will know more but this is when you'll see property held by John Q Public, “as trustee” instead of a ”married man,” ”unmarried man,” ”single-man,” ”manager,” ”joint tenant” or ”tenant in common.”
Yes, this can be Complicated
Which is why you should talk to your title company, CPA and/or lawyer who can better advise you than this off-the-cuff summary can. Having the summary, however, is our way to communicate how important this can be as it is that important to get this right.