Access Rights to Jointly Owned Property
A common issue with co-ownership is whether the co-owners can allow third parties to move into the property as roommates. For example, perhaps your co-owner decides to rent out an extra room. Or perhaps they allow their boyfriend or girlfriend to move in. Or maybe they allow an unwanted family member or friend to stay at the jointly owned house.
The law is that all co-owners have a right to occupy the property, which means they have the right to allow any person to move into the jointly owned home without the permission of the co-owners unless a partition action is filed.
Co-Owner’s Right to Access the Property
A fundamental rule of co-ownership in California is that: “One of the essential unities of a joint tenancy is that of possession. Each tenant owns an equal interest in all of the fee, and each has an equal right to possession of the whole. Possession by one is possession by all. Ordinarily, one joint tenant out of possession cannot recover exclusive possession of the joint property from his cotenant. He can only recover the right to be let into joint possession of the property with his cotenant. He cannot eject his cotenant in possession.”[1]Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451, 454–55.
Can a Co-owner let Roommates Move in to the Jointly Owned Property?
Because co-owners have a joint right to possession: “Each cotenant may lease or license his or her right to occupy and use the common property to a third person to the same extent that it could be occupied and used by the lessor cotenant.” [2]Miller & Starr, Right to lease or license to a third person, 4 Cal. Real Est. (4th ed.) § 11:3 (citing Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal. 2d 585, 602)
Said another way, “a single cotenant [i.e., co-owner] may confer occupancy rights upon a third person.”[3]Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal. 2d 585, 602 Another court found that “one joint tenant or cotenant is entitled to possession of the entire premises and may by lease or license transfer his right of possession to another or authorize another to exercise it.”[4]Tompkins v. Superior Ct. of City & Cty. of San Francisco (1963) 59 Cal. 2d 65, 68–69
One Joint Owner Can Lease the Entire Property
In fact, a co-owner could lease out the entire property. “One joint tenant may make a lease of the joint property, but this will bind only his share of it,” which “support[s] the conclusion that a lease to all of the joint property by one joint tenant is not a nullity but is a valid and supportable contract in so far as the interest of the lessor in the joint property is concerned.”[5]Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451, 458
How to Cancel a Lease Signed by Another Co-Owner
This can be problematic if one co-owner has leased out the property since “one joint tenant cannot cancel lease executed by another joint tenant and oust the lessee.”[6]Tompkins v. Superior Ct. of City & Cty. of San Francisco (1963) 59 Cal. 2d 65, 68–69 (describing Swartzbaugh v. Sampson (1936) 11 Cal.App.2d 451, 461); see Miller & Starr, Right to lease or … Continue reading The common right to lease the property when the co-owners are in disagreement creates complicated issues requiring the expertise of a co-ownership attorney.
The Rights of Co-Owners to Evict Occupants and Tenants Through an Unlawful Detainer
The conclusion of these authorities is that “A cotenant has no right to oust a person who holds possession with the consent of another tenant in common.”[7]Verdier v. Verdier (1957) 152 Cal.App. 2d 348, 352; see Miller & Starr, Right to lease or license to a third person, 4 Cal. Real Est. (4th ed.) § 11:3 (“a cotenant who does not join in a … Continue reading A secondary source suggests that: “The other cotenant cannot cancel the lease or recover exclusive possession of the entire property, nor may such person sue the lessee or licensee as a trespasser unless a proper notice to quit or other act showing a termination of the license or tenancy has been given.”[8]16 Cal. Jur. 3d Cotenancy and Joint Ownership § 44 (citing Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451 and Ord v. Chester (1861) 18 Cal. 77 Indeed, one case dating back to 1861 found that the answer to “whether a party put in possession or allowed to occupy a portion of premises by one tenant in common can be sued as a trespasser by another tenant in common” depends upon whether there was a “notice to quit or other act showing a termination of this license or tenancy.”[9]Ord v. Chester (1861) 18 Cal. 77, 80 Effectively, the authorities suggest that a tenant(s) under a lease signed by only one co-owner must be treated as any other tenant entitled to notice and an unlawful detainer action.
Exception: Domestic Violence Restraining Order Can Solve Some Possession Issues with Roommates Invited by Other Co-Owners
One of the rare exceptions to these laws allowing all guests of a co-owner to stay at the property is a domestic violence restraining order (DVRO), which can be obtained against so long as the co-owners both occupy the property, or are related by blood, marriage, romantic relationship, or having a child together. DVRO laws are meant to be used only when the appropriate facts are present.
Exception: Partition Action Referee May Remove All Occupants, Roommates and Co-Owners
There is one major exception to the rule that a co-owner can invite anyone they want on to the property without recourse, which is a partition action. When such a lawsuit is filed, a third party partition referee will be appointed by the court to sell the jointly-owned property and to fairly distribute the proceeds of the property among the co-owners. In roommates and occupants remain on the property, the court may give the referee instructions to have all tenants vacate the premises. See Code Civ. Proc. Section 872.120 and 872.130. The referee may even be authorized by a court judgment known as a writ of possession to have the sheriff to enter the property to turn over possession to the referee. This process is exactly what would occur in an unlawful detainer. Skilled partition lawyers will be able to accomplish this task through the prompt attention of the court.
Contact an Experienced Co-Ownership Attorney in California
If you have a co-owner who has allowed undesirable occupants to stay at the property, you can gain control of your property through a partition action. A partition action allows both parties to receive their proportion of an equity in a property fairly, justly, and legally. An experienced partition attorney will be able to answer your questions about obtaining possession to have the property partitioned.
For a free, 15 minute consultation with an experienced partition lawyer at Talkov Law, reach out to us online or by phone at (844) 4-TALKOV (825568).
References
| ↑1 | Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451, 454–55. |
|---|---|
| ↑2 | Miller & Starr, Right to lease or license to a third person, 4 Cal. Real Est. (4th ed.) § 11:3 (citing Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal. 2d 585, 602) |
| ↑3 | Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal. 2d 585, 602 |
| ↑4 | Tompkins v. Superior Ct. of City & Cty. of San Francisco (1963) 59 Cal. 2d 65, 68–69 |
| ↑5 | Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451, 458 |
| ↑6 | Tompkins v. Superior Ct. of City & Cty. of San Francisco (1963) 59 Cal. 2d 65, 68–69 (describing Swartzbaugh v. Sampson (1936) 11 Cal.App.2d 451, 461); see Miller & Starr, Right to lease or license to a third person, 4 Cal. Real Est. (4th ed.) § 11:3 (“The other cotenants cannot cancel the lease or license; nor can they recover exclusive possession of the entire property”) |
| ↑7 | Verdier v. Verdier (1957) 152 Cal.App. 2d 348, 352; see Miller & Starr, Right to lease or license to a third person, 4 Cal. Real Est. (4th ed.) § 11:3 (“a cotenant who does not join in a lease is…only entitled to the enjoyment of possession with the lessee or licensee, and if they dispossess the lessee, they may themselves be liable for trespass,” citing Verdier v. Verdier (1957) 152 Cal.App. 2d 348, 352) |
| ↑8 | 16 Cal. Jur. 3d Cotenancy and Joint Ownership § 44 (citing Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451 and Ord v. Chester (1861) 18 Cal. 77 |
| ↑9 | Ord v. Chester (1861) 18 Cal. 77, 80 |
