California Civil Code section 683.2 is the statute that governs how a joint tenant ends a joint tenancy. It lets any joint tenant sever the joint tenancy as to his or her own share without the other owners’ consent, by a deed to a third person, a deed to himself or herself, or a written declaration of severance. It also sets the one condition that trips up most do-it-yourself severances: to cut off the other owners’ right of survivorship, the severance must be recorded before the severing joint tenant dies. Once severed, the owners hold title as tenants in common, and any one of them can end the co-ownership through a partition action.
Full Text of Civil Code 683.2
(a) Subject to the limitations and requirements of this section, in addition to any other means by which a joint tenancy may be severed, a joint tenant may sever a joint tenancy in real property as to the joint tenant’s interest without the joinder or consent of the other joint tenants by any of the following means:
(1) Execution and delivery of a deed that conveys legal title to the joint tenant’s interest to a third person, whether or not pursuant to an agreement that requires the third person to reconvey legal title to the joint tenant.
(2) Execution of a written instrument that evidences the intent to sever the joint tenancy, including a deed that names the joint tenant as transferee, or of a written declaration that, as to the interest of the joint tenant, the joint tenancy is severed.
(b) Nothing in this section authorizes severance of a joint tenancy contrary to a written agreement of the joint tenants, but a severance contrary to a written agreement does not defeat the rights of a purchaser or encumbrancer for value in good faith and without knowledge of the written agreement.
(c) Severance of a joint tenancy of record by deed, written declaration, or other written instrument pursuant to subdivision (a) is not effective to terminate the right of survivorship of the other joint tenants as to the severing joint tenant’s interest unless one of the following requirements is satisfied:
(1) Before the death of the severing joint tenant, the deed, written declaration, or other written instrument effecting the severance is recorded in the county where the real property is located.
(2) The deed, written declaration, or other written instrument effecting the severance is executed and acknowledged before a notary public by the severing joint tenant not earlier than three days before the death of that joint tenant and is recorded in the county where the real property is located not later than seven days after the death of the severing joint tenant.
(d) Nothing in subdivision (c) limits the manner or effect of:
(1) A written instrument executed by all the joint tenants that severs the joint tenancy.
(2) A severance made by or pursuant to a written agreement of all the joint tenants.
(3) A deed from a joint tenant to another joint tenant.
(e) Subdivisions (a) and (b) apply to all joint tenancies in real property, whether the joint tenancy was created before, on, or after January 1, 1985, except that in the case of the death of a joint tenant before January 1, 1985, the validity of a severance under subdivisions (a) and (b) is determined by the law in effect at the time of death. Subdivisions (c) and (d) do not apply to severances made before January 1, 1986.
California Civil Code section 683.2 (added by Statutes 1984, chapter 519; amended by Statutes 1985, chapter 157)
Civil Code 683.2(a): Any Joint Tenant Can Sever Without the Other Owners’ Consent
Subdivision (a) settles the question most joint tenants ask first: no, you do not need your co-owner’s permission, signature, or even knowledge to end a joint tenancy as to your share. The statute gives two routes.
- A deed to a third person. Under subdivision (a)(1), transferring your interest to someone else severs the joint tenancy, even if that person has agreed to deed it right back to you. That is the old “strawman” method, and it still works.
- A deed to yourself, or a written declaration. Under subdivision (a)(2), you can skip the third person entirely. A deed from yourself as joint tenant to yourself as tenant in common works, and so does a one-page written declaration that the joint tenancy is severed as to your interest. Our sample deed and declaration to sever a joint tenancy shows both forms.
Subdivision (a)(2) codified the Court of Appeal’s decision in Riddle v. Harmon (1980) 102 Cal.App.3d 524, 531, which rejected the common law rule that a person could not be both grantor and grantee of the same deed and held that “[o]ne joint tenant may unilaterally sever the joint tenancy without the use of an intermediary device.” Before Riddle, a joint tenant who wanted out had to run title through a friend or an attorney and back again. The Legislature wrote Riddle into the Civil Code in 1984. (Estate of England (1991) 233 Cal.App.3d 1, 5.)
The opening words, “in addition to any other means by which a joint tenancy may be severed,” matter too. The statute adds methods; it does not take any away. A joint tenancy can still end the older ways, such as a sale of one owner’s share, a mutual agreement, or a judgment in a partition action. (Estate of England, 233 Cal.App.3d at p. 5.)
Civil Code 683.2(b): A Written Agreement Not to Sever Is Enforceable, an Oral One Is Not
Subdivision (b) is the one limit on the right to sever: a joint tenant cannot sever “contrary to a written agreement of the joint tenants.” If you and your co-owner signed an agreement that neither of you would sever, that agreement controls. The statute protects only written agreements. A handshake promise that “the house goes to whoever lives longer” does not stop a severance, as we explain in our post on why an oral agreement cannot prevent a joint tenancy severance.
Even a written agreement has a limit of its own. A buyer or lender who paid value in good faith without knowing about the agreement keeps what they bought, so a co-owner who sells or borrows against his share in breach of a no-severance agreement is answerable to the other joint tenant, not to the buyer.
Civil Code 683.2(c): The Severance Must Be Recorded Before Death
Subdivision (c) is where most severances fail. A deed or declaration that is signed but never recorded does not end the other joint tenants’ right of survivorship. To be effective against survivorship, the document must be recorded in the county where the property sits, and one of two timing rules must be met:
- Recorded before death. The severing joint tenant records the deed or declaration while still alive. This is the rule for nearly every case.
- The deathbed exception. If the document was signed and notarized no more than three days before the severing joint tenant died, it can be recorded up to seven days after death.
The Legislature added these rules in 1985 to stop a joint tenant from keeping a signed severance in a drawer and having it recorded only if he died first, while tearing it up if he outlived his co-owner. As the Court of Appeal explained:
“Section 683.2, subdivision (c), requires that a document unilaterally severing a joint tenancy be recorded in order to give the other joint tenants constructive notice of the severance and to avoid fraud.”
Estate of England (1991) 233 Cal.App.3d 1, 6
Two consequences follow. A will cannot sever a joint tenancy, because a will is not recorded during the testator’s life. (Estate of England, 233 Cal.App.3d at pp. 5–7.) And a deed recorded a month after death is too late, even if it was signed years earlier. (Dorn v. Solomon (1997) 57 Cal.App.4th 650, 653.) Our post on joint tenancy severance after death under section 683.2(c) covers these cases in detail.
Recording has a practical prerequisite: the county recorder will not accept a deed or declaration unless it is acknowledged before a notary public. (Government Code section 27287.) Sign it, notarize it, and record it the same week.
Civil Code 683.2(d): Severances All the Owners Join In Are Not Subject to the Recording Rule
Subdivision (d) carves out three situations from the recording requirement in subdivision (c): a written instrument signed by all the joint tenants, a severance made under a written agreement of all the joint tenants, and a deed from one joint tenant to another. The common thread is that the other joint tenants already know. The recording rule exists to protect a co-owner from a secret severance, and there is no secret when everyone signed or when the deed runs to the co-owner himself.
Civil Code 683.2(e): The Statute Applies to Old Joint Tenancies Too
Subdivision (e) makes the severance methods in subdivisions (a) and (b) apply to every joint tenancy in California real property, no matter when the deed was recorded. The recording rules in subdivisions (c) and (d) apply to severances made on or after January 1, 1986. For a joint tenancy created in 1970 and severed today, the whole statute applies.
What Civil Code 683.2 Means in a Partition Action
Severance and partition solve different problems. Severance changes what happens to your share when you die. Partition ends the co-ownership while you are alive. They often go together.
- Filing for partition does not sever the joint tenancy. Only the judgment does, and only if both joint tenants are alive when it is entered. A co-owner who files for partition and dies before judgment loses his share to the surviving joint tenant. (Teutenberg v. Schiller (1955) 138 Cal.App.2d 18, 22; Walters v. Boosinger (2016) 2 Cal.App.5th 421, 438–439.) A joint tenant who files for partition should record a severance under section 683.2 at the start of the case. Our guide to how to sever a joint tenancy in California walks through the steps.
- Severance makes the owners tenants in common. That affects which partition rules apply, including whether the buyout procedure under the Partition of Real Property Act (PRPA) is available. See our post on whether a co-owner can buy you out if you file for partition.
- Severance does not end the co-ownership. After a severance, you still own the property with your co-owner. If you want out, a co-owner buyout or a partition action is the way.
- Spouses in a divorce face an added step. Once a divorce petition is served, Family Code section 2040’s automatic temporary restraining orders (ATROs) require notice to the other spouse before a severance takes effect. See our post on severance of a joint tenancy after the ATRO.
Common Questions About Civil Code 683.2
Can I Sever a Joint Tenancy Without Telling My Co-Owner?
Yes. Section 683.2(a) lets you sever “without the joinder or consent of the other joint tenants.” Recording the severance gives your co-owner constructive notice, and nothing in the statute requires actual notice outside a pending divorce. Expect your co-owner to be unhappy when the recorded deed shows up, and expect the relationship to move toward a buyout or a partition. This comes up most often between parents and children on the same deed.
Does Severing a Joint Tenancy Change My Ownership Percentage?
No. If two joint tenants each owned half, each still owns half after the severance, just as tenants in common with no right of survivorship. Severance changes how you hold title, not how much of it you hold.
Usually, yes. A deed from a joint tenant to the trustee of a trust is a transfer to a third person under section 683.2(a)(1), and it severs the joint tenancy as to that share once recorded. See our post on putting a co-owned house into a trust.
What Happens If the Severance Was Never Recorded and My Co-Owner Died?
The surviving joint tenant takes the whole property by right of survivorship, and clears title by recording an affidavit of death of a joint tenant. The unrecorded severance has no effect against survivorship under section 683.2(c), unless it fits the three-day, seven-day deathbed exception.
Sever the Joint Tenancy, Then End the Co-Ownership for Good
Civil Code section 683.2 protects your share from passing to a co-owner you no longer trust. It does not get you your equity. For that, you need a partition action.
Talkov Law can help. With 12 full-time partition attorneys and experience in over 650 partition actions throughout California, our team handles every step of the process, from recording the severance through the partition sale and the final distribution of proceeds. Call (877) PARTITION (727-8484) today or contact us online for a free 30-minute consultation.
