Within the law of California real estate co-ownership, among the most common myths in joint tenancy is that an oral agreement can establish prevent the joint tenancy from being severed. California law is clear: it cannot. The same is true for the creation of a joint tenancy.
This issue is critical as many joint tenants believe that their exists an agreement to hold the property in this manner until one of the co-owners passes away, thereby leaving their interest to the other joint tenant. This is simply not true.
Joint Tenancy Must Be Express and in Writing
California courts have long held that joint tenancy cannot be created by oral agreement.
The rationale is rooted in both statutory and case law. A joint tenancy is a specific form of ownership that includes the right of survivorship, and it must meet stringent legal requirements. These include the “four unities” of time, title, interest, and possession. Critically, the “unity of title” requires that the co-owners receive their interests through the same instrument—typically a deed or will.
As explained in Hamm v. Taylor (1983) 142 Cal.App.3d 232, 235:
“The doctrine of joint tenancy is not to be applied unless the right of survivorship is clearly expressed; and the intention to create a joint tenancy must appear expressly in the instrument.”
An oral promise, even if agreed upon by all parties, is legally insufficient to establish joint tenancy.
The Statute of Frauds Bars Oral Agreements for Real Property
Under California’s Statute of Frauds (Civil Code § 1624(a)(3)), any agreement for the sale, conveyance, or creation of an interest in real property must be in writing. This requirement applies directly to joint tenancy arrangements. If co-owners claim there was a verbal agreement to hold property in joint tenancy, that assertion will not survive a legal challenge.
Courts have consistently rejected efforts to enforce such alleged oral promises. In Estate of Propst (1990) 50 Cal.3d 448, 455, the California Supreme Court reiterated:
“Under the statute of frauds, an agreement for the sale of real property, or an interest therein, is invalid unless the same or some note or memorandum thereof be in writing and subscribed by the party to be charged or by his agent.”
This is the key line the Court used to anchor its holding that oral understandings cannot override the clear, written title. Another relevant portion from Estate of Propst (1990) 50 Cal.3d 448, 455 states: “A joint tenancy may be created by grant or transfer to persons as joint tenants, or by devise or bequest to persons in that capacity.”
In short, if it’s not in writing, it doesn’t exist under the law.
Any Joint Tenant Can Sever the Joint Tenancy
California law expressly allows co-owners to unilaterally sever a joint tenancy, with Civil Code § 683.2(a)(2) providing that “a joint tenant ay 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…Execution of a written instrument that evidences the intent to sever the joint tenancy, including a deed that names the joint tenant as transferee,…the joint tenancy is severed.”
California Law Requires Any Agreement to Hold a Property in Joint Tenancy to be In Writing
Civil Code § 683.2(b) states that: “Nothing in this section authorizes severance of a joint tenancy contrary to a written agreement of the joint tenants….” This matches the statute of frauds, with Civil Code § 1624(a)(3) providing that: “The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged…. An agreement…for the sale of real property, or of an interest therein.”
The idea that any joint tenant has agreed orally to hold the property in joint tenancy is legally unenforceable in California.
Implications in Partition Actions
For parties involved in a partition action, this distinction is critical. Many defendants try to claim that their co-owner “promised” to hold the property in joint tenancy or that there was an “understanding” that survivorship rights would apply. But unless the deed explicitly states that the property is held in joint tenancy, California courts will treat the ownership as tenants in common—the default form of co-ownership in the absence of a written joint tenancy.
This means that upon death, the decedent’s interest does not automatically transfer to the surviving co-owner, and any dispute over such interests will be resolved based on actual recorded title—not unspoken understandings.
Don’t Rely on Verbal Promises
If you or someone you know is co-owning real estate based on verbal promises about survivorship rights, it’s essential to understand that those promises have no legal effect unless they are properly documented. The risks include probate complications, unintended inheritances, and litigation over property interests.
At Talkov Law, we’ve seen countless partition actions where parties claim joint tenancy based on oral agreements—claims that are consistently rejected by the courts. We can help clarify ownership rights and guide co-owners through the legal process to resolve disputes and protect their interests.
Contact California’s Partition Attorneys for Help Enforcing Your Property Rights
If someone claims you orally agreed to hold title in joint tenancy—or you’re involved in a co-ownership dispute where the deed doesn’t match reality—you need experienced legal counsel. At Talkov Law Partition Attorneys, we’ve successfully handled partition actions across California and understand how to navigate complex title issues. Don’t let an undocumented agreement compromise your ownership rights.
Call Talkov Law at (844) 4-TALKOV or reach out online for a free consultation with one of our eleven dedicated partition attorneys.
