California Civil Code section 686 sets the default rule for co-owners: when two or more people take an interest in property, they are tenants in common unless the property was acquired by a partnership, the deed or will expressly declares a joint tenancy, or the property was acquired as community property. Most siblings who inherit a house, friends who buy together, and unmarried partners whose deed lists only their names fall under this rule. And every tenant in common, from San Diego to Sacramento, has the right to end the co-ownership through a partition action.
Full Text of Civil Code 686
Every interest created in favor of several persons in their own right is an interest in common, unless acquired by them in partnership, for partnership purposes, or unless declared in its creation to be a joint interest, as provided in Section 683, or unless acquired as community property.
California Civil Code section 686 (enacted 1872)
Civil Code 686 Makes Tenancy in Common the Default
California recognizes four ways for several people to own property together. Civil Code section 682 lists them: joint interest, partnership interests, interests in common, and the community interest of spouses. Civil Code section 685 defines the third one: “An interest in common is one owned by several persons, not in joint ownership or partnership.”
Section 686 decides which of the four applies when the document creating the ownership does not pick one. The answer is tenancy in common. A grant deed to “Maria Lopez and Ana Lopez,” with nothing more, makes the two sisters tenants in common. A will that leaves a house “to my children” does the same. So does a trust distribution to several beneficiaries or a court order distributing an estate to several heirs, unless the document says otherwise.
The statute has been on the books, unchanged, since the Civil Code was enacted in 1872. It reversed the old English common law rule, which presumed a joint tenancy whenever property was conveyed to two or more people. In California, the presumption runs the other way.
The Three Exceptions in Civil Code 686
Section 686 names only three situations in which co-owners are not tenants in common:
- Partnership property. Property acquired “in partnership, for partnership purposes” belongs to the partnership, not to the partners as co-owners. Under Code of Civil Procedure section 872.730, the court may apply the partition statutes to partnership property when it finds them a suitable remedy and the partnership’s unsecured creditors will not be prejudiced.
- A declared joint tenancy. Property is held in joint tenancy only when the deed or will expressly declares it, as Civil Code 683 on how a joint tenancy is created requires. In practice, the deed must say “as joint tenants.” Owners usually make that choice on the escrow vesting worksheet.
- Community property. Property a married couple acquires during the marriage is presumed to be community property under Family Code section 760, not a tenancy in common between the spouses. Spouses divide community property in the family law court, not through partition, as we explain in our post on divorce and the co-owned house.
If none of the three applies, the co-owners are tenants in common. There is no fourth exception for family members, for owners who “always thought” they would inherit from each other, or for owners who lived together.
The California Supreme Court Enforces Civil Code 686 Strictly
In Dalton v. Keers (1931) 213 Cal. 204, a man used money from a joint bank account to buy land under a contract that named the buyers as “G. W. Gould or Anna Dalton.” After Gould died, Dalton sued to take title to the whole property as the survivor. The trial court agreed. The California Supreme Court reversed.
The court quoted sections 683 and 686 and explained that the contract “did not create a joint tenancy” because “the instrument itself did not so declare.” (Dalton v. Keers (1931) 213 Cal. 204, 207.) It added that if the buyers “had been named in the conjunctive, no doubt could arise, and they would take as tenants in common.” (Id. at p. 207.) The court also noted that it had long applied the same rule, citing Estate of Hittell (1903) 141 Cal. 432, which held that an interest in favor of several people is an interest in common unless a joint interest is created as section 683 provides.
The lesson for co-owners is simple. What the owners intended, assumed, or told each other about survivorship does not create a joint tenancy. Unless the document declares one, the survivor does not take everything.
What Being a Tenant in Common Means for a Co-Owner Who Wants Out
Because Civil Code 686 makes tenancy in common the default, most California co-owners have the rights that come with it:
- No right of survivorship. When a tenant in common dies, their share passes under their will or trust, or to their heirs. It does not go to the other co-owners. Compare the right of survivorship that only a declared joint tenancy carries.
- Shares can be unequal. Unlike joint tenants, tenants in common can own 60 and 40 percent, or any other split.
- Each owner can transfer their own share. A tenant in common can sell, give away, or borrow against their share without the others’ consent, as explained in our post on whether you can sell your half of a jointly owned property.
- Each owner can use the whole property. Every tenant in common has the right to possess all of it. A co-owner living in the house cannot change the locks to keep the others out.
- Each owner can force a sale. Under Code of Civil Procedure section 872.710, partition is a matter of right between co-owners unless barred by a valid waiver. A tenant in common does not need the other owners’ agreement to end the co-ownership.
Civil Code 686 tells you the form of ownership. It does not lock in how the money is divided when the property is sold. In a partition, “all parties’ interests in the property may be put in issue regardless of the record title.” (Milian v. De Leon (1986) 181 Cal.App.3d 1185, 1195–1196.) And once the court finds a tenancy in common, it “may either order reimbursement” for a co-owner who paid more toward the purchase “or determine the ownership interests in the property in proportion to the amounts contributed.” (Id. at p. 1196.)
That flexibility helps the co-owner who put in more money. Our guide to unequal down payments and ownership interests explains how courts credit the larger contribution.
Common Questions About Civil Code 686
Our Deed Lists Only Our Names. How Do We Hold Title?
If you are not married to each other and did not buy as a partnership, you are tenants in common under Civil Code section 686. The deed must expressly say “joint tenants” to create a joint tenancy.
My Siblings and I Inherited a House. Are We Tenants in Common?
Almost always. Heirs who inherit together take as tenants in common unless the will or trust declares a joint tenancy, which is rare. That means any sibling can ask a court to sell the house. See our page on inherited property partition.
My Co-Owner Says We Agreed the Survivor Gets Everything. Is That True?
Not unless the deed or will declares a joint tenancy. Dalton v. Keers rejected a survivor’s claim to the whole property because the document did not declare a joint tenancy. A co-owner who wants survivorship must hold title as joint tenants. Our comparison of joint tenants vs. tenants in common covers the differences.
Can a Tenant in Common Force the Sale of the Whole Property?
Yes. A tenant in common with any share, even a small one, can file a partition action. The court usually orders the property sold and divides the proceeds. Co-owners who would rather keep the property can negotiate a co-owner buyout instead.
Tenancy in Common Is the Default. Partition Is the Way Out.
Civil Code section 686 means most California co-owners are tenants in common, whether or not they ever chose that label. Each of them can sell their share, leave it to whomever they choose, and ask the court to end the co-ownership.
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 proving your share of the property through the partition sale and the final distribution of proceeds. No fees until you win. Call (877) PARTITION (727-8484) today or contact us online for a free 30-minute consultation.
