Joint Tenancy with Right of Survivorship
A joint tenancy is a type of co-ownership in California wherein all parties own equal shares of a property. A property owned by joint tenants is “owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or by transfer from a sole owner to himself or herself and others, or from tenants in common or joint tenants to themselves or some of them, or to themselves or any of them and others, or from spouses, when holding title as community property or otherwise to themselves or to themselves and others or to one of them and to another or others, when expressly declared in the transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants.” California Civil Code 683(a).
Importantly, joint tenants also benefit from a “right of survivorship,” meaning that if one party dies, their interest passes to the surviving co-owner(s). Indeed, “…when one joint tenant dies, the entire estate belongs automatically to the surviving joint tenant(s).” Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1317. The right of survivorship is powerful and can help bypass probate or other expensive procedures after a joint tenant passes away.
A joint tenancy is also unique in that is “requires unity of interest, unity of title, unity of time, and unity of possession.” McDonald v. Morley (1940) 15 Cal. 2d 409, 412. Requiring these four unities together means that a joint tenancy is intentional. For these reasons as well as the strength of the right of survivorship, a joint tenancy is extremely powerful and is not considered the default manner of holding title in California.
Joint Tenancy vs. Tenancy in Common
A tenancy in common is simply a form of ownership in which a property is “owned by several persons, not in joint ownership or partnership.” California Civil Code 685. Generally, “[a]n interest created in favor of several persons is presumed to be a tenancy in common…” (a) [§ 39] In General., 12 Witkin, Summary 11th Real Prop § 39 (2023). A tenancy in common is the default form of co-ownership in California, as opposed to a joint tenancy which requires intention. Additionally, a tenancy in common has no right of survivorship. The interests of a tenant in common who passes away must go through the normal asset distribution process (i.e. probate).
A joint tenant can sell their interest in a property at any time. However, there are few (if any) buyers looking to purchase partial interests in a property. Joint tenants looking to get out of a co-ownership relationships but have uncooperative co-owners who refuse to sell may choose to instead force the sale of the entire property by filing a partition action. A partition action allows all co-owners, including joint tenants, to receive their equitable interest in the property with or without the consent of their co-owners.
Joint Tenancy in a Partition Action
When joint tenants are involved in a partition action, there may be a presumption that all owners are entitled to the same amount and reimbursement is not available. This is known as a “true joint tenancy” in which co-owners “contributed significant financial resources and nonfinancial efforts to the acquisition of the home, furnishings, appliances, improvements, decoration and landscaping.” Milian v. De Leon (1986) 181 Cal.App.3d 1185, 1195-1198. Offsets are disallowed only in a true joint tenancy, which presumes that the co-owners “agreed to own [the property] equally irrespective of their individual contributions to the purchase price and expenditures for improvements to and maintenance and preservation of the property.” Milian v. De Leon (1986) 181 Cal.App.3d 1185, 1191. Indeed, a “true joint tenancy” is analogous to community property in a marriage where each party has an equal ownership interest in the property despite potentially lopsided individual contributions.
As California Jurisprudence explains: “Joint tenants hold their interests in the property in equal shares.” Common law and statutory requisites of creation—Unity of interest, 4 Cal. Real Est. (Miller & Starr, 4th ed.) § 11:25. The law is that “A joint interest is one owned by two or more persons in equal shares….” Civ. Code § 683(a). As one court explained: “One of the characteristics of joint tenancy is the equality of the interest held by the respective tenants,” citing “Civ. Code § 683.” Stark v. Coker (1942) 20 Cal. 2d 839, 844.
Miller & Starr explains Civil Code 683(a) as follows: “A joint tenancy in real property consists of an estate owned jointly in undivided equal shares by two or more persons…. Each joint tenant is vested with title to an undivided equal share of the joint tenancy property, but this interest, being undivided, runs to the entire property.” Characteristics; creation, 4 Cal. Real Est. (4th ed.) § 11:22.
“[A] joint tenancy deed…creates a rebuttable presumption that it is held in joint tenancy. The presumption created by the deed cannot be overcome by testimony of the hidden intentions of one of the parties, but only by evidence tending to prove a common understanding or an agreement that the character of the property was to be other than joint tenancy.” Machado v. Machado (1962) 58 Cal.2d 501, 506. This “presumption arising from the form of the deed may not be rebutted solely by evidence as to the source of the funds used to purchase the property.” Gudelj v. Gudelj (1953) 41 Cal.2d 202, 212.
This dovetails with the burden under Evidence Code 662 that: “The owner of the legal title to property is presumed to be the owner of full beneficial title. This presumption may be rebutted only by clear and convincing proof.”
Sometimes, the ownership interests of co-owners are unclear from the deed, perhaps due to unequal down payments, or the ownership percentages are otherwise disputed.
For example, in Cosler v. Norwood (1950) 97 Cal.App.2d 665, 666, the trial court decreed that the plaintiff owned a one-fourth interest in the real property and that defendant owned a three-fourths interest based on their proportional unequal payments toward the purchase of the property. The court found that: “There is no merit in plaintiff’s contention that since the title to the real property was taken in the names of the parties as joint tenants defendant is estopped to claim that she has more than one-half interest in the property.” Cosler v. Norwood (1950) 97 Cal.App.2d 665, 666.
Offsets in a Partition Action when Property is Owned by True Joint Tenants
A partition action generally allows for an accounting of offsets. This includes reimbursements for improvements, repairs, down payments, mortgage payments, and other unequal contributions to the shared property. However, if the court finds that a true joint tenancy exists, it “may not order reimbursement or contribution on account of differences in the amounts the parties have paid toward the initial acquisition of the property.” Milian v. De Leon (1986) 181 Cal.App.3d 1185, 1195. This can greatly affect the outcome of a partition action as offsets are often one of the most hotly disputed topics throughout the lawsuit. However, most joint tenants are not “true joint tenants,” meaning most courts will allow offsets. The true joint tenancy is a fact intensive analysis that should be completed by a partition attorney.
How to Sever a Joint Tenancy
California Civil Code states that: “a joint tenant may sever a joint tenancy in real property as to the joint tenant’s interest without the joinder or consent of the other joint tenants…” California Civil Code 683.2(a). Indeed, a joint tenant may sever a joint tenancy at any time during the life of the other joint tenant(s), thereby making all co-owners tenants in common. Joint tenants would complete a deed to sever joint tenancy and file this in the county in which the property is located.
How Talkov Law’s Partition Attorneys Can Help
If you are looking to sell your jointly owned property but your co-owner refuses to cooperate, a partition action may be a suitable remedy for your co-ownership woes. Talkov Law is dedicated to helping joint tenants like you end unbalanced co-ownership relationships and receive the equity you are entitled to. With experience handling 400 partition actions throughout California, Talkov Law’s full time partition attorneys are ready to assist you.
If you’re looking to end your co-ownership dispute, contact California’s premier partition action law firm by calling Talkov Law at (844) 4-TALKOV (825568) or sending us a message today.
