Knowing the different types of co-ownership is key to understanding property co-ownership. In California, unmarried co-owners frequently hold title in one of two main forms: tenancy in common or joint tenancy. The difference between these two can greatly affect how property is inherited, managed, and divided in the case of a partition action.
Tenancy in Common
A tenancy in common is a form of co-ownership in which an interest is “owned by several persons, not in joint ownership or partnership.” California Civil Code 685.
Tenancy in common is considered the default form of ownership by courts, rather than joint tenancy. Tenants in common are permitted to own varying shares of the property, but all co-owners have an equal right to use and enjoy the entire property.
When a co-owner dies, his or her interest may be transferred through probate or other proceeding as the right of survivorship does not apply to a tenancy in common. Additionally, tenants in common may transfer their interest at any time without severing the tenancy in common or even affecting the ownership interests of the other co-owners.
Joint Tenancy
By contrast, a joint tenancy is a type of co-ownership in which interests are “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…” California Civil Code 683(a).
“[W]here…the deed reflects joint tenancy interests, there is ‘a prima facie case that the property is actually owned in joint tenancy. There is a presumption that ownership is as stated in the deed and the burden is upon the party who seeks to rebut the presumption. The principal characteristic of joint tenancy is the right of survivorship.’” Colmet-Daage v. Cremoux, No. H045033 (Cal. Ct. App. Apr. 5, 2021).
A joint tenancy is created at one time under a single instrument of transfer giving each joint tenant an equal share of the property. All parties enjoy equal rights to use and enjoy the entire property, not just a part. Joint tenants also enjoy a “right of survivorship,” meaning that if one party dies, their rights of ownership pass 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.
This can help avoid the expensive and time-consuming probate process even without a will in place. Joint owners can also transfer their interest in the property. However, this severs the joint tenancy and automatically converts the joint tenancy into a tenancy in common.
Contact an Experienced 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 370 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.
