How Can We Assign Different Shares of Ownership on Real Property Without a Tax Reassessment?
Full Question:
Answer:
Generally, when the percentages of ownership change, there is a possibility of a tax liability. Please see the statutes below for exceptions that may apply. It may be necessary to partition the property. A partition action is a court action to divide property. Partition statutes allow those who own property in common to sever their interests and take their individual share of the property. An action for partition usually arises when a property is jointly owned and there is a dispute as to how to divide property, or in a dispute as to whether property should be sold. One co-owner of real property can file to get a court order requiring the sale of the property and division of the profits, or division of the land between the co-owners, which is often a practical impossibility. Normally, a partition order provides for an appraisal of the total property, which sets the price for one of the parties to buy out the other's half. The partition statutes govern actions for partition of real property, but the partition statutes do not apply to property divisions under the Family Law Act or in other types of cases specifically governed by other statutes. A partition action may be initiated and maintained by any of a co-owner of personal property; an owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates. Generally, a partition action may be maintained only by a person having the interest in the property, however, an equitable interest, is sufficient to support a partition action. A 'partition in kind' refers to land partitioned conveniently and equitably between or among the owners. Alternatively, it must be sold as a single parcel and the proceeds divided among the owners. If two or more people who own a property as tenants in common or if people who are not married to each other own a property as joint tenants with right of survivorship develop a dispute concerning the property, any owner may bring a partition action with the court to get the property divided between owners. While the lawsuit is pending, all owners will have equal access to and interest in the property. This arrangement applies regardless of whether the mortgage is in one owner's name or the name of all owners.
We are prohibited from giving legal advice, as this service provides information of a general legal nature. We suggest you contact a local attorney who can review all the facts and documents involved.
For further discussion, please see:
http://www.lexisnexis.com/community/estate-elderlaw/blogs/practitionerscorner/archive/2010/03/31/can-you-avoid-california-real-property-tax-changes-in-ownership-and-keep-taxes-down-when-you-draft-discretionary-accumulation-trusts-yes-you-can.aspx
Please see the following CA statutes to determine applicability:
61. Except as otherwise provided in Section 62, change in
ownership, as defined in Section 60, includes, but is not limited to:
(a) The creation, renewal, sublease, assignment, or other transfer
of the right to produce or extract oil, gas, or other minerals
regardless of the period during which the right may be exercised. The
balance of the property, other than the mineral rights, shall not be
reappraised pursuant to this section.
(b) The creation, renewal, extension, or assignment of a taxable
possessory interest in tax exempt real property for any term. For
purposes of this subdivision:
(1) "Renewal" and "extension" do not include the granting of an
option to renew or extend an existing agreement pursuant to which the
term of possession of the existing agreement would, upon exercise of
the option, be lengthened, whether the option is granted in the
original agreement or subsequent thereto.
(2) Any "renewal" or "extension" of a possessory interest during
the reasonably anticipated term of possession used by the assessor to
value that interest does not cause a change in ownership until the
end of the reasonably anticipated term of possession used by the
assessor to value that interest. At the end of the reasonably
anticipated term of possession used by the assessor, a new base year
value, based on a new reasonably anticipated term of possession,
shall be established for the possessory interest.
(3) "Assignment" of a possessory interest means the transfer of
all rights held by a transferor in a possessory interest.
(c) (1) (A) The creation of a leasehold interest in taxable real
property for a term of 35 years or more (including renewal options).
(B) The termination of a leasehold interest in taxable real
property which had an original term of 35 years or more (including
renewal options).
(C) Any transfer of a leasehold interest having a remaining term
of 35 years or more (including renewal options).
(D) Any transfer of a lessor's interest in taxable real property
subject to a lease with a remaining term (including renewal options)
of less than 35 years.
(2) Only that portion of a property subject to that lease or
transfer shall be considered to have undergone a change in ownership.
(3) For the purpose of this subdivision, for 1979-80 and each year
thereafter, it shall be conclusively presumed that all homes
eligible for the homeowners' exemption, other than manufactured homes
located on rented or leased land and subject to taxation pursuant to
Part 13 (commencing with Section 5800) and floating homes subject to
taxation pursuant to Section 229, that are on leased land have a
renewal option of at least 35 years on the lease of that land,
whether or not in fact that renewal option exists in any contract or
agreement.
(d) (1) (A) A sublease of a taxable possessory interest in
tax-exempt real property for a term, including renewal options, that
exceeds half the length of the remaining term of the leasehold,
including renewal options.
(B) The termination of a sublease of a taxable possessory interest
in tax-exempt property with an original term, including renewal
options, that exceeds half the length of the remaining term of the
leasehold, including renewal options.
(C) Any transfer of a sublessee's interest with a remaining term,
including renewal options, that exceeds half of the remaining term of
the leasehold.
(2) Any transfer of a possessory interest in tax-exempt real
property subject to a sublease with a remaining term, including
renewal options, that does not exceed half the remaining term of the
leasehold, including renewal options.
(e) The creation, transfer, or termination of any joint tenancy
interest, except as provided in subdivision (f) of Section 62, and in
Section 63 and Section 65.
(f) The creation, transfer, or termination of any
tenancy-in-common interest, except as provided in subdivision (a) of
Section 62 and in Section 63.
(g) Any vesting of the right to possession or enjoyment of a
remainder or reversionary interest that occurs upon the termination
of a life estate or other similar precedent property interest, except
as provided in subdivision (d) of Section 62 and in Section 63.
(h) Any interests in real property that vest in persons other than
the trustor (or, pursuant to Section 63, his or her spouse) when a
revocable trust becomes irrevocable.
(i) The transfer of stock of a cooperative housing corporation,
vested with legal title to real property that conveys to the
transferee the exclusive right to occupancy and possession of that
property, or a portion thereof. A "cooperative housing corporation"
is a real estate development in which membership in the corporation,
by stock ownership, is coupled with the exclusive right to possess a
portion of the real property.
(j) The transfer of any interest in real property between a
corporation, partnership, or other legal entity and a shareholder,
partner, or any other person.
62. Change in ownership shall not include:
(a) (1) Any transfer between coowners that results in a change in
the method of holding title to the real property transferred without
changing the proportional interests of the coowners in that real
property, such as a partition of a tenancy in common.
(2) Any transfer between an individual or individuals and a legal
entity or between legal entities, such as a cotenancy to a
partnership, a partnership to a corporation, or a trust to a
cotenancy, that results solely in a change in the method of holding
title to the real property and in which proportional ownership
interests of the transferors and transferees, whether represented by
stock, partnership interest, or otherwise, in each and every piece of
real property transferred, remain the same after the transfer. The
provisions of this paragraph shall not apply to transfers also
excluded from change in ownership under the provisions of subdivision
(b) of Section 64.
(b) Any transfer for the purpose of perfecting title to the
property.
(c) (1) The creation, assignment, termination, or reconveyance of
a security interest; or (2) the substitution of a trustee under a
security instrument.
(d) Any transfer by the trustor, or by the trustor's spouse or
registered domestic partner, or by both, into a trust for so long as
(1) the transferor is the present beneficiary of the trust, or (2)
the trust is revocable; or any transfer by a trustee of such a trust
described in either clause (1) or (2) back to the trustor; or, any
creation or termination of a trust in which the trustor retains the
reversion and in which the interest of others does not exceed 12
years duration.
(e) Any transfer by an instrument whose terms reserve to the
transferor an estate for years or an estate for life. However, the
termination of such an estate for years or estate for life shall
constitute a change in ownership, except as provided in subdivision
(d) and in Section 63.
(f) The creation or transfer of a joint tenancy interest if the
transferor, after the creation or transfer, is one of the joint
tenants as provided in subdivision (b) of Section 65.
(g) Any transfer of a lessor's interest in taxable real property
subject to a lease with a remaining term (including renewal options)
of 35 years or more. For the purpose of this subdivision, for 1979-80
and each year thereafter, it shall be conclusively presumed that all
homes eligible for the homeowners' exemption, other than
manufactured homes located on rented or leased land and subject to
taxation pursuant to Part 13 (commencing with Section 5800) and
floating homes subject to taxation pursuant to Section 229, that are
on leased land have a renewal option of at least 35 years on the
lease of that land, whether or not in fact that renewal option exists
in any contract or agreement.
(h) Any purchase, redemption, or other transfer of the shares or
units of participation of a group trust, pooled fund, common trust
fund, or other collective investment fund established by a financial
institution.
(i) Any transfer of stock or membership certificate in a housing
cooperative that was financed under one mortgage, provided that
mortgage was insured under Section 213, 221(d)(3), 221(d)(4), or 236
of the National Housing Act, as amended, or that housing cooperative
was financed or assisted pursuant to Section 514, 515, or 516 of the
Housing Act of 1949 or Section 202 of the Housing Act of 1959, or the
housing cooperative was financed by a direct loan from the
California Housing Finance Agency, and provided that the regulatory
and occupancy agreements were approved by the governmental lender or
insurer, and provided that the transfer is to the housing cooperative
or to a person or family qualifying for purchase by reason of
limited income. Any subsequent transfer from the housing cooperative
to a person or family not eligible for state or federal assistance in
reduction of monthly carrying charges or interest reduction
assistance by reason of the income level of that person or family
shall constitute a change of ownership.
(j) Any transfer during the period March 1, 1975, to March 1,
1981, between coowners in any property that was held by them as
coowners for all or part of that period, and which was eligible for a
homeowner's exemption during the period of the coownership,
notwithstanding any other provision of this chapter. Any transferee
whose interest was revalued in contravention of the provisions of
this subdivision shall obtain a reversal of that revaluation with
respect to the 1980-81 assessment year and thereafter, upon
application to the county assessor of the county in which the
property is located filed on or before March 26, 1982. No refunds
shall be made under this subdivision for any assessment year prior to
the 1980-81 fiscal year.
(k) Any transfer of property or an interest therein between a
corporation sole, a religious corporation, a public benefit
corporation, and a holding corporation as defined in Section 23701h
holding title for the benefit of any of these corporations, or any
combination thereof (including any transfer from one entity to the
same type of entity), provided that both the transferee and
transferor are regulated by laws, rules, regulations, or canons of
the same religious denomination.
(l) Any transfer, that would otherwise be a transfer subject to
reappraisal under this chapter, between or among the same parties for
the purpose of correcting or reforming a deed to express the true
intentions of the parties, provided that the original relationship
between the grantor and grantee is not changed.
(m) Any intrafamily transfer of an eligible dwelling unit from a
parent or parents or legal guardian or guardians to a minor child or
children or between or among minor siblings as a result of a court
order or judicial decree due to the death of the parent or parents.
As used in this subdivision, "eligible dwelling unit" means the
dwelling unit that was the principal place of residence of the minor
child or children prior to the transfer and remains the principal
place of residence of the minor child or children after the transfer.
(n) Any transfer of an eligible dwelling unit, whether by will,
devise, or inheritance, from a parent or parents to a child or
children, or from a guardian or guardians to a ward or wards, if the
child, children, ward, or wards have been disabled, as provided in
subdivision (e) of Section 12304 of the Welfare and Institutions
Code, for at least five years preceding the transfer and if the
child, children, ward, or wards have adjusted gross income that, when
combined with the adjusted gross income of a spouse or spouses,
parent or parents, and child or children, does not exceed twenty
thousand dollars ($20,000) in the year in which the transfer occurs.
As used in this subdivision, "child" or "ward" includes a minor or an
adult. As used in this subdivision, "eligible dwelling unit" means
the dwelling unit that was the principal place of residence of the
child or children, or ward or wards for at least five years preceding
the transfer and remains the principal place of residence of the
child or children, or ward or wards after the transfer. Any
transferee whose property was reassessed in contravention of the
provisions of this subdivision for the 1984-85 assessment year shall
obtain a reversal of that reassessment upon application to the county
assessor of the county in which the property is located. Application
by the transferee shall be made to the assessor no later than 30
days after the later of either the transferee's receipt of notice of
reassessment pursuant to Section 75.31 or the end of the 1984-85
fiscal year.
(o) Any transfer of a possessory interest in tax-exempt real
property subject to a sublease with a remaining term, including
renewal options, that exceeds half the length of the remaining term
of the leasehold, including renewal options.
(p) (1) Commencing on January 1, 2000, any transfer between
registered domestic partners, as defined in Section 297 of the Family
Code, including, but not limited to:
(A) Transfers to a trustee for the beneficial use of a registered
domestic partner, or the surviving registered domestic partner of a
deceased transferor, or by a trustee of such a trust to the
registered domestic partner of the trustor.
(B) Transfers that take effect upon the death of a registered
domestic partner.
(C) Transfers to a registered domestic partner or former
registered domestic partner in connection with a property settlement
agreement or decree of dissolution of a registered domestic
partnership or legal separation.
(D) The creation, transfer, or termination, solely between
registered domestic partners, of any coowner's interest.
(E) The distribution of a legal entity's property to a registered
domestic partner or former registered domestic partner in exchange
for the interest of the registered domestic partner in the legal
entity in connection with a property settlement agreement or a decree
of dissolution of a registered domestic partnership or legal
separation.
(2) Any transferee whose property was reassessed in contravention
of the provisions of this subdivision for a transfer occurring
between January 1, 2000, and January 1, 2006, shall obtain a reversal
of that reassessment upon application to the county assessor of the
county in which the property is located. Application by the
transferee shall be made to the assessor no later than June 30, 2009.
A county may charge a fee for its costs related to the application
and reassessment reversal in an amount that does not exceed the
actual costs incurred. This paragraph shall be liberally construed to
provide the benefits of this subdivision and Article XIII A of the
California Constitution to registered domestic partners.
(A) After consultation with the California Assessors' Association,
the State Board of Equalization shall prescribe the form for
claiming the reassessment reversal described in paragraph (2). The
claim form shall be entitled "Claim for Reassessment Reversal for
Registered Domestic Partners." The claim shall state on its face that
a "certificate of registered domestic partnership" is available upon
request from the California Secretary of State.
(B) The information on the claim shall include a description of
the property, the parties to the transfer of interest in the
property, the date of the transfer of interest in the property, and a
statement that the transferee registered domestic partner and the
transferor registered domestic partner were, on the date of transfer,
in a registered domestic partnership as defined in Section 297 of
the Family Code.
(C) The claimant shall declare that the information provided on
the form is true, correct, and complete to the best of his or her
knowledge and belief.
(D) The claimant shall provide with the completed claim the
"Certificate of Registered Domestic Partnership," or photocopy
thereof, naming the transferee and transferor as registered domestic
partners and reflecting the creation of the registered domestic
partnership on a date prior to, or concurrent with, the date of the
transfer for which a reassessment reversal is requested.
(E) Any reassessment reversal granted pursuant to a claim shall
apply commencing with the lien date of the assessment year, as
defined in Section 118, in which the claim is filed. No refunds shall
be made under this paragraph for any prior assessment year.
(F) Under any reassessment reversal granted pursuant to that
claim, the adjusted full cash value of the subject real property in
the assessment year described in subparagraph (E) shall be the
adjusted base year value of the subject real property in the
assessment year in which the excluded purchase or transfer took
place, factored to the assessment year described in subparagraph (E)
for both of the following:
(i) Inflation as annually determined in accordance with paragraph
(1) of subdivision (a) of Section 51.
(ii) Any subsequent new construction occurring with respect to the
subject real property.
