Joint tenancy is a common form of property ownership in California that includes the right of survivorship, meaning when one joint tenant dies, their interest automatically passes to the surviving joint tenant(s). However, what happens if one joint tenant decides to transfer their interest during their lifetime? This is a critical question that often arises in real estate disputes, especially in partition actions.
How Does a Transfer Affect Joint Tenancy?
When a joint tenant transfers their interest in a property, the act of conveying their interest has significant legal consequences. Under California law, if one joint tenant transfers their interest to a third party, that transfer severs the joint tenancy with respect to that interest. The person who receives the transferred interest becomes a tenant in common with the remaining joint tenants.
Importantly, the remaining joint tenants continue to hold title to the property as joint tenants with each other. This means that the right of survivorship still applies between the remaining joint tenants, but not with the transferee.
Legal Authority on Severance of Joint Tenancy
This principle is well-established in California law. As stated in Miller and Starr: “When there are more than two joint tenants, and one conveys his or her title to a third person, the grantee becomes a tenant in common with respect to the remaining joint tenants, but the remaining joint tenants continue as joint tenants with respect to each other.” [1]Miller & Starr, Cal. Real Estate § 11:29 (4th ed.))
This position is supported by the case of Shelton v. Vance (1951) 106 Cal.App.2d 194, where the court ruled: “Where one of three or more joint tenants conveys his interest to a third person, the latter then becomes a tenant in common, instead of a joint tenant, with the other, although such others remain joint tenants as between themselves.”
Witkin explains the issue as follows: “If there are three joint tenants, a conveyance by one makes the person to whom the conveyance was made a tenant in common with the others as to a one-third interest, but the remaining two-thirds interest is held by the other two joint tenants in joint tenancy. The same principle would apply when there are more than three joint tenants.”[2](bb) [§ 55] Joint Tenancy With Other Tenants., 12 Witkin, Summary 11th Real Prop § 55 (2024) (citing Estate of Galletto (1946) 75 C.A.2d 580, 587, 171 P.2d 152; Shelton v. Vance (1951) 106 C.A.2d … Continue reading
Partition and Severance of Joint Tenancy
Severing a joint tenancy can lead to complex legal disputes, especially if the parties disagree on their rights or how the property should be divided. In many cases, co-owners file a partition action to force the sale or division of the property. Our team of experienced partition attorneys has handled numerous cases where severance of joint tenancy led to disputes about ownership and division of property.
Example: The Smith Family’s Joint Tenancy
Three siblings, Alice, Ben, and Carla Smith, owned a family home as joint tenants in a partition action. Under joint tenancy, each sibling had an equal right to the property, and if one of them passed away, their interest would automatically transfer to the surviving siblings.
However, Alice decided she no longer wanted to keep her share of the family home. She transferred her interest in the property to Daniel, a family friend. This transfer severed the joint tenancy only with respect to Alice’s interest. Daniel, now the new owner of Alice’s one-third interest, became a tenant in common with Ben and Carla.
At this point, Ben and Carla continued to hold their interests as joint tenants, meaning if one of them passed away, their share would automatically transfer to the other. But Daniel, as a tenant in common, had no right of survivorship with respect to Ben and Carla. He simply owned his one-third share and could sell or transfer it as he pleased.
This situation created a hybrid ownership structure:
- Ben and Carla remained joint tenants with each other.
- Daniel owned his one-third share as a tenant in common with Ben and Carla.
- If Ben and Carla wanted to preserve their joint tenancy with Daniel’s share, they would have to take legal steps to re-establish it, but until then, their property ownership remained partially severed.
Learn More About Your Rights as a Co-Owner
At Talkov Law, we specialize in representing co-owners in partition actions across California. Whether you’re dealing with a severance of joint tenancy or any other real estate co-ownership dispute, we are here to help. To learn more, contact us online or call (844) 4-TALKOV (825568) for a free consultation with our team of experienced partition attorneys.
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