You should inform your escrow officer and lender as soon as possible of how you wish to hold title to your home and exactly how your name(s) will appear on all documents. This allows your lender and title company to prepare all documents correctly. (Changes later, such as adding or deleting an initial in your name, can delay your closing.) You may wish to consult an attorney, accountant or other professional before deciding how to hold title.
Real Estate Law
Every type of real estate transaction is governed by competing interests and potential legal issues. For 50 years, the Real Estate attorneys at Burch & Cracchiolo have served our clients with multidisciplinary legal solutions for property investment, development and management, as well as real estate finance.
Burch & Cracchiolo has an extensive history representing local, national and international clients in all facets of real estate transactions and related litigation. We are experienced in acquisition, development and zoning of large commercial, residential and planned development projects, as well as build out and lease up of shopping centers, commercial and industrial facilities and office buildings. Burch & Cracchiolo is also skilled in representing local and national lending institutions in the negotiation, preparation and enforcement of financial documentation for large commercial transactions. When necessary, our experienced litigation team is at the ready to aggressively advocate on behalf of our clients.
|COMMUNITY PROPERTY||JOINT TENANCY WITH RIGHT OF SURVIVORSHIP||COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP||TENANCY IN COMMON|
|Requires a valid marriage between two persons.||Parties need not be married; may be more than two joint tenants.||Requires a valid marriage between two persons.||Parties need not be married; may be more than two tenants in common.|
|Each spouse holds an undivided one-half interest in the estate.||Each joint tenant holds an equal and undivided interest in the estate, unity of interest.||Each spouse holds an undivided one-half interest in the estate.||Each tenant in common holds an undivided fractional interest in the estate. Can be disproportionate, e.g.,20% and 80%; 60% and 40%; 20%, 20%, 20% and 40%; etc.|
|One spouse cannot partition the property by selling his or her interest.||One joint tenant can partition the property by selling his or her joint interest.||One spouse cannot partition the property by selling his or her interest.||Each tenant's share can be conveyed, mortgaged or devised to a third party.|
|Requires signatures of both spouses to convey or encumber.||Requires signatures of all joint tenants to convey or encumber the whole.||Requires signatures of both spouses to convey or encumber.||Requires signatures of all tenants to convey or encumber the whole.|
|Each spouse can devise (will) one-half of the community property.||Estate passes to surviving joint tenants outside of probate.||Estate passes to the surviving spouse outside of probate.||Upon death the tenant's proportionate share passes to his or her heirs by will or intestacy.|
|Upon death the estate of the decedent must be "cleared" through probate, affidavit or adjudication.||No court action required to "clear" title upon the death of joint tenant(s).||No court action required to "clear" title upon the first death.||Upon death the estate of the decedent must be "cleared” through probate, affidavit or adjudication.|
|Both halves of the community property are entitled to a "stepped up" tax basis as of the date of death.||Deceased tenant's share is entitled to a "stepped up" tax basis as of the date of death.||Both halves of the community property are entitled to a "stepped up" tax.||Each share has its own tax basis.|
|Note: Arizona is a community property state. Property acquired by a husband and wife is presumed to be community property unless legally specified otherwise. Title may be held as "Sole and Separate." If a married person acquires title as sole and separate, his or her spouse must execute a disclaimer deed to avoid the presumption of community property. Parties may choose to hold title in the name of an entity, e.g., a corporation; a limited liability company; a partnership (general or limited), or a trust. Each method of taking title has certain significant legal and tax consequences; therefore, you are encouraged to obtain advice from an attorney or other qualified professional.|
Real Estate Transactions and Finance
Land Use and Zoning
Burch & Cracchiolo serves our clients' land use visions from inception to completion. Our zoning and land use planning attorneys represent all aspects of the development arena from commercial and master-planned community developers to land investors.
We regularly assist clients with annexation petitions, general plan amendments, specific plans, zoning applications, subdivision regulations, use permits, variances, entitlement of master-planned communities, infrastructure development agreements, negotiation of impact fees and economic incentives, impact of environmental regulations on land use, water rights, liquor licenses, compensation for regulatory takings and condemnation actions. Burch & Cracchiolo attorneys also regularly assist clients with the formation of homeowners' associations and owners' associations in commercial, condominium and planned use projects, the drafting of CCRs, easements, licenses, joint use agreements, and construction contracts.
Our real estate attorneys assist clients in a full array of legal services connected with the leasing of properties, including documentation, negotiation, enforcement and dissolution of leases for commercial, retail and related properties.
Purchase, Sale, Leasing and Financing Transactions
Real Estate Development
Burch & Cracchiolo represents sellers, buyers and developers in all areas of development including assemblage and acquisitions, entity formation, zoning and land use, construction, local government economic incentives and representation, infrastructure development agreements, and acquisition, development and permanent financing for projects. Our attorneys have established relationships with the planning and development offices within the cities and towns of Arizona, and work closely with State and County officials to ensure an orderly and effective plan of development for its clients.
Burch & Cracchiolo attorneys also represent clients in the negotiation, documentation, title review and other due diligence investigation relating to all aspects of the acquisition and disposition of commercial and residential properties. We have been instrumental in every phase of development, working side-by-side with our clients from acquisition and disposition of vacant land to completed shopping centers, apartment complexes, retail centers, industrial and office complexes. We work closely with our real estate clients in leasing concerns for their projects: negotiating leases, modifying leases and assignments of leases, subleases, and collection on leases and lease guarantees.
Representative clients include shopping center developers, custom and production home builders, apartment builders, master-planned community developers, homeowner's associations, golf course developers and irrigation districts within the state.
Real Estate Finance
Our attorneys have extensive experience representing lenders and borrowers in financing for the acquisition and development of many residential and commercial projects including office buildings, shopping centers, hotels, industrial buildings, residential subdivisions. Our attorneys have negotiated and documented commercial real estate loans and have worked with numerous institutions on loan modifications, assumptions, workouts and restructuring loans, receiverships and bankruptcies.
Real Estate Litigation
Burch & Cracchiolo has an active real estate litigation practice, skilled and ready to enforce and defend our clients' interests. The real estate attorneys are proficient in all areas of real estate litigation including contract actions, landlord/tenant actions, condemnation, eminent domain, construction contracts, title matters, brokerage fee disputes, financing disputes, forcible detainers, commission disputes, specific performance and enforcement actions for judgments obtained, collection procedures and attachment actions.
Real Estate Workouts
Burch & Cracchiolo's real estate attorneys, with assistance from our attorneys who specialize in creditors' rights, bankruptcy and reorganization, have worked with numerous institutions on the full spectrum of loan modifications, assumptions, workouts and restructuring of loans, receiverships and bankruptcies.