Ownership in Severalty
- ownership by one individual or corporation
- singular ownership w/ no other party having a common ownership interest
Tenancy in Common
- undivided ownership - real or personal property - by more than one party w/o the right of survivorship
- the tenant in common has a share in the whole and not ownership of a separate portion
- upon death of tenant in common - their interest doesn't pass
Right of Survivorship
- the right of other co-owners to receive one co-owner's interest upon their death
Tenancy in Common #2
- parties - any # of persons - can be husband/wife
- ownership can be divided into any # of interests, equal or unequal
- each co-owner has a separate legal title an undivided interest
- equal right of possession
- each co-owner's interest may be conveyed
Joint Tenancy
- Parties - any # of persons - can be husband/wife
- Ownership interest cannot be divided and must be equal
- there is only one title to the whole property
- equal right of possession
- conveyance by one co-owner w/o the others breaks the joint tenancy
-
Community Property
- parties - only husband and wife
- ownership interests are equal
- title is the 'community'
- equal right of possession
- both co-owners must join in conveyance of real property - separate interests cannot be conveyed
- purchaser's status - purchaser can
Creating a Joint Tenancy
1. TIME - Joint tenants must get their interests at the same time
2. TITLE - Joint tenants must acquire their interests by the same document
3. INTEREST - must have equal interests
4. POSSESSION - tenants rights as to use and contributions are equal
Partition Action
- can be brought to break up the joint tenancy or tenancy in common
- by agreement - the parties can give up their rights to a partition action
- if possible - the court will order the prop be divided among the co-owners
- if division isn't possible or pr
Separate Property - married persons
- remains separate property unless it becomes commingled so as to be indistinguishable from community property
Exclusions from Equal Ownership of Community Prop in CA
- property separately owned by husband and wife prior to marriage
- rents/profits from separate property
- prop acquired by either spouse by gift or inheritance
- prop acquired w/ separate prop funds
- damages received for personal injuries
- earnings/acc
Premarital and Marital Agreements
- premarital agreements about prop rights are generally valid
- agreements entered into after marriage may be valid if undue influence is not a factor
- many unmarried people living together enter into contracts concerning their prop rights - may provide
Community Prop Rules
- as of 1975 - each spouse has coequal management and control of community property - comm property is now liable for the debts of either spouse after marriage - earnings of a spouse are not liable for the debts of the other spouse incurred prior to marri
Community Prop with Right of Survivorship
- to be effective - ownership must be expressly declared on the deed
- when one spouse dies - the surviving spouse (as in joint tenancy) takes title regardless of any will
- avoids probate costs and delays
- either or both spouses (prior to death) can ter
Partnership
- 2 or more people associated to carry on a business for profit compose a ___
- an agreement to share in the profits and losses would create a presumption of a partnership's existence
- GENERAL PARTNER - active partner in the partnership who has unlimited
General Partners
- have equal rights to use partnership property for partnership purposes
- can't transfer their interests to another without the consent of the other partners
- the death or bankruptcy of a general partner dissolves the partnership
Fictitious Name
- a name that doesn't include the surname of every partner
- partnership must comply w/ fictitious name statutes - if not the partnership cannot sue in the partnership name on contracts made using the fictitious name
- to comply the partnership must file
Taxation of Partnerships
- advantage that partnerships have over corporations -- partnerships don't pay income tax - so they aren't double taxed like corps
Termination of Partnership
- agreement
- bankruptcy of a partner or partnership
- court order that results when a partner petitions the court for a dissolution of partnership
- death of a general partner
Joint Ventures
- partnerships for a single undertaking - not continuous business
- set for limited purpose - implied authority of its members is limited
- taxed in the same way as a partnership
- joint venturers have joint and several liability of partners to 3rd partie
Limited Partnership
- partnerships in which limited partners have limited liability rather than unlimited liability of a gen partnership
- only liable to the extent of their investment
- must have at least one general partner who has unlimited liability
- name must end with
Syndicates
- generally limited partnerships
- RE syndicates fall under jurisdiciton of Dept of Corps
- an investor in RE syndicate has advantage of limited liability of a corporation investor - investors liability limited to the amt that was invested
- unlimited tax
Trusts
- property may be held in the name of a trust for a specific purpose - ie charitable
- living trusts (revocable) are used for estate planning - bc probate can be avoided
Real Estate Investment Trust REIT
- allow smaller investors to pool resources for quality investments with limited liability
- unincorporated trust or association managed by a trustee that meets this criteria:
1. can't hold property for sale to customers in ordinary course of bus.
2. must
Corporations
- separate legal entitiy established under state law by the filing of articles of incorporation w/ secretary of state
- shareholders have limited liability and no direct management of the corp
- double taxation - corp pays income tax on profits and divide
Closely held Corp
- one that the stock is held by a few people who actively control the business
- often are able to avoid significant corp taxation by not showing a profit - by giving high salaries - benefits - bonuses to officers who are also stockholders
Foreign Corps
- a corporation in any other state is a ___ in CA
- to do business in CA - a ____ must get permission from sec. of state - otherwise it can't sue in CA courts
S Corporations
- small corporation can elect to be taxes as a partnership by becoming an ____
- following criteria:
1. fewer than 75 shareholders
2. only one category of stock may be issued
3. all stockholders must be individuals - not corps
4. business can't receive mo
Limited Liability Companies
- LLC provide limited liability protection of corps w/o the regulations associated with S corporations
- operating agreements similar to corp bylaws but they don't have perpetual existence
- 1 or more members can file articles of organization w/ sec of st
Unincorporated Association
- nonprofit organization
- under common law - cannot hold title bc it is not an entitiy
- unincorp. assoc - in CA - for religious, scientific, social, ed., rec., benevolent purposes may hold title to Real prop necessary for their purposes in the name of t
Multiple Housing Developments
- Subdivided Lands Law -- the division of prop into 5 or more parcels for purpose of sale, lease, financing is a subdivision
Subdivision Classifications
1. Standard Subdivision - land division w/ no common areas
2. Common Interest Subdivision - owners own their unit, separate interests and an area in common w/ their owners
3. Undivided Interest Subdivision - development which owners are tenants in common
Condominiums
- an interest in real property consisting of an undivided interest in common in a portion of a parcel together w/ a separate interest in space
- residential, commercial, or industrial
- most owners own their unit in fee simple
- each unit owner can encumb
Stock Cooperatives
- corporation formed for the purpose of holding title to an improved property
- each shareholder has exclusive right to the occupancy of a unit w/ a proprietary lease
- transfer of shares also transfers occupancy by a sublease
- most coops have right to a
Community Apartment Projects
- owners purchase property together as tenants in common w/ right to exclusive occupancy of their units through a lease
- difficulty borrowing on their undivided interest - only one trust deed - failure of one owner could jeapordize all owners
- resale is
Planned Developments
- planned unit Development PUD - subdivision
- unit and land under it owned by individual unit
- areas for use of all owners - rec areas - are owned by owners as tenants in common
- owners actually own their own land and not just airspace
Time Share Projects
- interval/fractionalized ownership - owner gets exclusive use of a unit annually for a set period of time
- interests may be in perpetuity, for life, or stated # of years
- 12 or more units of 5yrs or more = subdivision and fall under jurisdiction of RE
Sale of Units
- must provide purchasers w/ copy of restrictions, bylaws, articles of incorporation, owners' assoc. financial statement, docs from HOA
Owner Liability
- owner of Real prop is liable for injuries to other people and/or property caused by negligence in maintaining or operating property
- dangerous conditions obvious >> injured party may have assumed the risk
- owners liability could extend to trespassers
Attractive Nuisance Doctrine
- requirements on prop owners to protect children trespassers from dangerous conditions on their property
- CA owners are generally not liable for natural dangers and only liable for created or maintained a specific dangerous situation where there would b
Hazardous Substance Disclosure
- Health and Safety Code - requires owners of nonresidential real property before they sell/lease to give notice to buyers or lessees of the release of hazerdous substances that they know of - when they have reasonable cause to believe haz. substances are
Lead Paint
- purchasers/renters of 1-4 residential units built prior to 1978 must be given a Watch out for Lead Based Paint booklet that they have up to 10 days after signing sales contract to have residence inspected for lead paint
- sellers can't refuse this - but
CERCLA
- CERCLA owners, operators, and lessees of real prop have cleanup liability for actual/threatened release of hazerdous substances
- also liable are people who generate, transport, or dispose of hazardous substances
- fed law - landowners may raise the def