When multiple people own a property, they typically hold title as either joint tenants or tenants in common.
While both forms of co-ownership allow multiple parties to have an interest in the same real estate, their legal rights and what happens when an owner passes away differ significantly. Understanding these differences is crucial, especially when partition actions are needed to resolve disputes among co-owners.
At Talkov Law Partition Attorneys, we have handled over 470 partition cases throughout California, helping clients understand their rights as joint tenants or tenants in common and guiding them through partition actions when disputes arise.
Call (844) 4-TALKOV (825568) for a Free Case Consultation Today.
What Are Joint Tenants?
Joint tenants are co-owners of real estate who hold equal shares and possess the right of survivorship.
This means that when one owner passes away, their share automatically transfers to the remaining co-owners without the need for probate. This form of co-ownership is commonly used among spouses or close family members who want to ensure that the property remains within the group upon one co-owner’s death.
Key Features of Joint Tenants:
- Equal Ownership: Regardless of financial contributions, all joint tenants hold equal shares in the property.
- Right of Survivorship: When one owner dies, their share automatically passes to the surviving co-owners, bypassing probate.
- The Four Unities: To establish a joint tenancy, the co-owners must acquire the property at the same time, under the same title, with equal interest, and equal right to possess.
- Cannot Pass to Heirs: Unlike tenants in common, joint tenants cannot will their share to beneficiaries; it automatically transfers to the other co-owners.
- Risk of Severance: If one joint tenant sells or transfers their share, the joint tenancy is severed, converting it into a tenancy in common.
What Are Tenants in Common?
Tenants in common share ownership of a property without the right of survivorship.
This means that when a co-owner dies, their share passes to their heirs or as directed in their will rather than transferring to the other co-owners. Tenants in common can hold unequal shares and have the freedom to sell or transfer their interest independently.
Key Features of Tenants in Common:
- No Right of Survivorship: A co-owner’s share does not pass to the remaining co-owners but rather to their heirs or estate.
- Unequal Ownership Shares Allowed: Co-owners can hold different ownership percentages, making it ideal for investment partnerships or multi-party ownership.
- Separate Interests: Each co-owner can sell, transfer, or mortgage their share without needing the consent of the others.
- Probate Required: When a tenant in common dies, their share must go through probate before being transferred to heirs.
- Best for Estate Planning: Tenancy in common is preferred when co-owners want to leave their share to beneficiaries rather than co-owners.
Key Differences Between Joint Tenancy and Tenancy in Common
| Feature | Joint Tenancy | Tenancy in Common |
|---|---|---|
| Right of Survivorship | Yes – ownership automatically transfers to surviving co-owners | No – ownership passes to heirs |
| Equal Ownership Required? | Yes | No – owners can hold different percentages |
| Can a Co-Owner Sell Their Interest? | No – all co-owners must agree to transfer ownership | Yes – a co-owner can sell or transfer their share freely |
| Avoids Probate? | Yes | No – must go through probate |
| Best For | Spouses, family members who want automatic inheritance | Investment partners, family members who want to leave property to heirs |
What Happens If Co-Owners Disagree?
Disputes among joint tenants or tenants in common can arise for various reasons, such as disagreements over selling, refinancing, or maintaining the property. If co-owners cannot reach a resolution, a partition action may be the best way to force a sale or division of the property.
Partition Actions for Joint Tenants and Tenants in Common:
- Joint Tenants: If one joint tenant decides to sell their share, the joint tenancy is automatically severed, and the ownership is converted to tenancy in common.
- Tenants in Common: Any co-owner can file a partition action to force a sale or division, even if the other owners object.
- Filing for Partition: The partition process involves filing a complaint in California Superior Court, followed by legal procedures to ensure fair division or sale.
Choosing the Right Form of Co-Ownership
Selecting the most suitable form of co-ownership depends on your goals and circumstances. Here are a few key considerations:
- Do you want the property to automatically go to your co-owner(s) upon your death? If yes, joint tenancy is best.
- Do you want to leave your share to your heirs or estate? If yes, tenancy in common is better.
- Are you purchasing the property as an investment with non-family members? If yes, tenancy in common allows flexibility in ownership structure.
Contact an Experienced California Partition Attorney
Understanding the difference between a tenancy in common and a joint tenancy is a key component of understanding co-ownership in California. If you are experiencing issues with your co-owner and are looking to force the sale of a co-owned property, the partition attorneys at Talkov Law can help.
With over 430 partition actions handled throughout California, Talkov Law has the experience required to effectively litigate your partition action. Call (844) 4-TALKOV (825568) or contact us online to schedule your free, 15-minute consultation with Talkov Law.
