HOLDING TITLE TO REAL ESTATE IN NEW MEXICO

Purchasers of real property should carefully consider how they will hold title. The information provided here is for general informational purposes only and is not legal advice. If purchasers have questions about which method of holding title is most advantageous, they should seek the assistance of a licensed New Mexico attorney. The State Bar of New Mexico may be able to assist in finding a lawyer and can be contacted at www.nmbar.org; 1-800-876-6227; or 1-505-797-6066.

I. SOLE OWNERSHIP

Sole ownership of land is characterized by the full and exclusive ownership of land by a single individual or an entity. Examples of sole ownership include:

  1. A single or unmarried person taking title in their personal capacity; or
  2. A married person taking title, separately and apart from their spouse and the marital community estate that exists between married persons; or
  3. An entity (a corporation, partnership, limited liability company or trustee of a trust) taking title to land.

II. CO-OWNERSHIP

Title to land may be held by two or more co-owners, being either persons or entities. Examples of co-ownership include:

  1. Community Property
    Community property is broadly defined as “property acquired by either or both spouses during marriage which is not separate property.” Section 40-3-8 (B) NMSA 1978.

    “Community property is distinguished from separate property, which is property acquired before marriage, by separate gift or bequest, after legal separation, or which is agreed to be owned only by one spouse.” Section 47-1-36 NMSA 1978.

    “Property acquired during marriage by either husband or wife, or both, is presumed to be community property.” Section 40-3-12 (A) NMSA 1978.

  2. Joint Tenancy
    Single persons, married persons, or entities may co-own land by taking title as joint tenants. “A joint tenancy in real property is one owned by two or more persons, each owning the whole and an equal undivided share, by a title created by a single devise or conveyance….” Section 47-1-36 NMSA 1978.

    “Right of survivorship is the ‘main difference between a joint tenancy and a tenancy in common,’ because upon the death of a tenant in common, that tenant’s share passes to his or her heirs rather than to the cotenants.“ Edwin Smith, LLC v. Synergy Operating, 2012-NMSC-034, ¶ 15.

    “[J]oint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession.” 2 William Blackstone, Commentaries on the Laws of England, 2 (Univ. of Chicago Press ed.1979) (1766).

  3. Tenancy In Common
    Single persons, married persons, or entities may co-own land by taking title as tenants in common. A Tenancy in Common is characterized as ownership by two or more parties, in equal or unequal undivided shares, with each party having an equal right to possess the whole property. See Black’s Law Dictionary, Bryan A. Garner, Editor, 7th. Ed., (West 1999).

    There is no right of survivorship in a tenancy in common, and each co-owner may sell or will or dispose of their interest in the property without the other tenant(s) selling their interest. 86 C.J.S. Tenancy in Common § 5 (2013).

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