As partition attorneys in California, property co-owners frequently ask if ownership rights can be forfeited by a co-owner moving out of (“abandoning”) the property. More specifically, co-owners want to know if they would give up their ownership rights to a co-owned property in California just by moving out. The answer is that, generally, a co-owner will not lose their rights to a jointly owned property by vacating the premises.
California courts have determined that exclusive possession alone is not enough to acquire title. California courts have explained that “the rule is clear that one tenant in common cannot acquire the title of his cotenant by mere exclusive possession.”Hunter v. Schultz (1966) 240 Cal.App. 2d 24, 28
Adverse Possession Against a Co-Owner
However, California law does provide an opportunity for non-owner to acquire title to a property after the statutorily required amount of time has passed through a process called adverse possession. To acquire title through adverse possession, a party must occupy land for at least 5 years California Code of Civil Procedure 318 and:
- Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner.
- It must be hostile to the owner’s title.
- The holder must claim the property as his own under either color of title or claim of right.
- Possession must be continuous and uninterrupted for five years.
- The holder must pay all the taxes levied and assessed upon the property during the period.
Adverse possession has a hurdle when used against a co-owner simply for being absent since “exclusive occupancy by a cotenant is deemed permissive; it does not become adverse until the tenant out of possession has had either actual or constructive notice that the possession of the cotenant is hostile to him.”West v. Evans (1946) 29 Cal. 2d 414, 418
However, one secondary source suggests that: “The ouster by one cotenant of others can result in a tenant in possession obtaining title to the property by adverse possession. To prove an ouster, such as to establish title by adverse possession between cotenants, requires evidence stronger than that which would be required to establish a title by adverse possession in a stranger.”16 Cal. Jur. 3d Cotenancy and Joint Ownership § 65 (citing Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 Cal.App. 4th 1122 and Estate of Hughes (1992) 5 Cal.App. 4th 1607)
As the court in Hacienda Ranch Homes, Inc. v. Superior Ct. (2011) 198 Cal.App. 4th 1122, 1128 stated:
But where, as here, a claim of ownership by adverse possession is asserted against a cotenant additional principles become operative. Each tenant in common has a right to occupy the whole of the property. The possession of one is deemed the possession of all; each may assume that another in exclusive possession is possessing for all and not adversely to the other. Before title may be acquired by adverse possession as between cotenants, the occupying tenant must bring home or impart notice to the tenant out of possession, by acts of ownership of the most open, notorious and unequivocal character, that he intends to oust the latter of his interest in the common property. Such evidence must be stronger than that which would be required to establish a title by adverse possession in a stranger. In short, one tenant in common cannot by mere exclusive possession acquire the title of his cotenant.
One recent unpublished decision in California explained the tension between these rules as follows:
The bar is higher when the property owner and would-be adverse possessor are cotenants on the property. (Preciado v. Wilde (2006) 139 Cal.App.4th 321, 322, 325 (Preciado); Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 Cal.App.4th 1122, 1128 (Hacienda Ranch Homes ).) Because cotenants enjoy “equal possessory rights in land,” including the right to occupy the property exclusively (Preciado, at pp. 322, 325), there is nothing remarkable—and, more to the point, nothing adverse —about one cotenant occupying a jointly owned property. Thus, to put a cotenant on notice that the would-be adverse possessor’s occupation is hostile, the would-be adverse possessor must first “oust” her cotenant. (Id. at p. 325 ; Hacienda Ranch Homes, at p. 1128.) Hightower v. Flowers (Cal. Ct. App. May 22, 2015) No. B253697, 2015 WL 2447213, at *3
Sometimes, adverse possession claims include requests for the rental value of the property. The bottom line is that co-owners facing a claim of adverse possession by ouster should contact a skilled partition lawyer to understand their rights. More information on the concept of ouster is found in our article on the concept of ouster under California law.
Possession Requirements to Initiate or Maintain a Partition Action
“A partition action may be commenced and maintained by . . . an owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates.” California Code of Civil Procedure 872.210(a)(2)
A leading secondary source on California property law clarifies that “The present statute governing partition makes no requirement as to possession, merely prescribing ownership of the real property by several persons in concurrent or successive estates of inheritance for life or for years. Accordingly, neither actual possession nor a right of immediate possession is necessary to enable a co-owner to maintain a partition suit if the co-owner otherwise falls within the provisions of the statute.”
In other words, a party need not have actual or immediate possession of a property to be able to initiate or maintain a partition action so long as they meet the requirements laid out in Cal. Code Civ. Proc. § 872.210.
As a recent unpublished decision found, “it is well settled that a cotenant, holding title in fee, is not barred from pursuing partition by either abandonment (see Ferris v. Coover (1858) 10 Cal. 589, 631; Hunter v. Shultz (1966) 240 Cal.App.2d 24, 28) or the failure to pay a proportionate share of property expenses (Lazzarevich[v. Lazzarevich (1952)] 39 Cal.2d [48,] 50-51).” Jamison v. McNeal (Cal. Ct. App. May 6, 2022) No. A161846, 2022 WL 1438863, at *5
Contact an Experienced Co-Ownership Attorney in California
If you have a co-owner who is threatening to take possession of a property you own together, know that you have rights that are not easily dissolved. As the above California cases show, it requires much more than moving out of a jointly owned property for a few weeks or months in order for a co-owner to gain complete ownership of the property. Conversely, if you wish to obtain title to a property you reside in from a co-owner out of possession, a partition attorney can assist.
A partition action allows both parties to receive their proportion of an equity in a property fairly, justly, and legally. An experienced partition attorney can answer questions you have regarding moving out of and selling a jointly owned property in California. For a free, 15 minute consultation with an attorney at Talkov Law, reach out to us online or by phone at .
|↑1||Hunter v. Schultz (1966) 240 Cal.App. 2d 24, 28|
|↑2||California Code of Civil Procedure 318|
|↑3||West v. Evans (1946) 29 Cal. 2d 414, 418|
|↑4||16 Cal. Jur. 3d Cotenancy and Joint Ownership § 65 (citing Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 Cal.App. 4th 1122 and Estate of Hughes (1992) 5 Cal.App. 4th 1607)|
|↑5||Hightower v. Flowers (Cal. Ct. App. May 22, 2015) No. B253697, 2015 WL 2447213, at *3|
|↑6||California Code of Civil Procedure 872.210(a)(2)|
|↑7||Jamison v. McNeal (Cal. Ct. App. May 6, 2022) No. A161846, 2022 WL 1438863, at *5|