A joint tenant who expects to inherit a co-owner’s share automatically can lose that expectation without ever being told. In Re v. Re (1995) 39 Cal.App.4th 91, the Court of Appeal held that when two of three joint tenants deeded their shares to each other, the joint tenancy with the third owner ended, and so did his right of survivorship. It did not matter that the deeds sat unrecorded until the day after one of the signers died.
The brother who filed the partition action still won what a partition plaintiff is entitled to: the court ordered both properties sold. What he lost was the argument that he owned half. For co-owners, the lesson is that a right of survivorship is not a plan. A co-owner who wants their share in cash should not wait and hope to outlive the others.
Why Re v. Re Matters
- Survivorship can be ended without your consent. Any joint tenant can sever a joint tenancy alone. The others do not have to agree, and they do not have to be told.
- A deed between joint tenants does not have to be recorded before death. The usual recording rule protects the other joint tenants from a secret severance, but the statute has an exception for a deed from one joint tenant to another.
- The partition was still granted. The dispute was only about the size of each share. The court ordered the properties sold and the proceeds divided one-third and two-thirds.
- Ownership shares are decided inside the partition case. The court sorted out who owned what, and then ordered the sale, in one lawsuit.
The Facts: Two Properties in Burbank and Tujunga
In 1974, a grandmother deeded two properties, one in Burbank and one in Tujunga in the San Fernando Valley, to her daughter, Jane Re Norman, and to Jane’s two adult children, Pamela and Steven Re, “as joint tenants.” Jane managed the properties and collected the rents for years.
In 1989, Steven and his mother fell out over an unpaid loan, and Steven threatened to file a partition action. In response, Jane and Pamela hired a lawyer and signed deeds granting their “undivided two-thirds interest” to themselves “as Joint Tenants.” They did not record the deeds.
Steven sued in Los Angeles County Superior Court in 1990 for partition, an accounting of the rents, and a receiver. Jane died in July 1992 while the case was pending. Pamela recorded the 1989 deeds the next day.
At trial, Steven argued that because the deeds were not recorded before his mother died, the original three-way joint tenancy was still in place at her death, so he and Pamela each took half by survivorship. The trial court granted partition and ordered the properties sold, but awarded Steven one-third and Pamela two-thirds. Steven appealed.
How the Court of Appeal Decided the Case
The 1989 Deeds Severed the Joint Tenancy
Under Civil Code section 683.2, a joint tenant can sever a joint tenancy without the other owners’ consent by a deed or other written instrument showing the intent to sever. This is the rule that grew out of Riddle v. Harmon. The court read the 1989 deeds as showing three intentions: to sever the joint tenancy as to Steven, to create a new joint tenancy between mother and daughter in their two-thirds, and to leave Steven a tenant in common with one-third. Once a joint tenancy is severed, the right of survivorship is gone.
The Recording Rule and Its Exception
Steven relied on subdivision (c) of the statute. It says a severance by deed or written declaration does not end the other joint tenants’ right of survivorship unless the document is recorded before the severing owner dies, or is notarized within three days before death and recorded within seven days after. The court agreed that the purpose of that rule is to prevent fraud through a secret severance.
But subdivision (d)(3) says that nothing in the recording rule limits “[a] deed from a joint tenant to another joint tenant.” Jane and Pamela were joint tenants who deeded to each other, so the recording rule did not apply. Steven argued the exception should cover only the rights of the two people who signed. The court refused to add words to the statute:
“Nothing in the language of section 683.2, subdivision (d)(3) or its legislative history suggests the subdivision was meant to apply only to two severing joint tenants.”
Re v. Re (1995) 39 Cal.App.4th 91, 99
The Result
The Court of Appeal affirmed. Steven owned one-third as a tenant in common. Pamela owned two-thirds: her own third, plus her mother’s third, which passed to her by survivorship under the new joint tenancy. The properties were sold and the proceeds divided on that basis.
What Re v. Re Means for California Co-Owners
- Do not count on outliving your co-owners. The California Supreme Court has called survivorship an expectancy that depends on “the ultimate gamble” of survival. A co-owner who wants out can file for partition now and be paid for the share they actually own.
- You can sever too. Every joint tenant has the same power Jane and Pamela used. See how to transfer your share of a co-owned property and why an oral agreement cannot prevent a severance.
- Record your own severance. The exception in Re covers only a deed from one joint tenant to another. A joint tenant who severs by a deed to themselves or by a written declaration still has to meet the recording rule.
- A fight over shares does not stop the sale. The court decides each owner’s undivided interest in the partition case and then orders a partition by sale.
Re v. Re shows how quickly title can change between family members, and that a partition action is where the shares get decided and the property gets sold.
Talkov Law can help. With 12 full-time partition attorneys and experience in over 650 partition actions throughout California, our team handles every step, from the complaint through the referee’s sale and the final distribution of proceeds. Call (877) PARTITION (727-8484) today or contact us online to get started.
