Co-Ownership of Real Property in California
“Co-tenancy” is an umbrella term used to describe ownership by several co-owners with undivided interests in the real property. There are four distinct types of co-tenancies (or co-ownerships) recognized by statute in California in which several people can own the same property.California Civil Code 682
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 A tenancy in common is considered the default 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 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.
A joint tenancy is a type of co-ownership in which an interest 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. A joint tenancy in personal property may be created by a written transfer, instrument, or agreement.”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.’ Weak v. Weak (1962) 202 Cal.App.2d 632, 638. ‘The principal characteristic of joint tenancy is the right of survivorship.’” Estate of Propst (1990) 50 Cal.3d 448, 455. 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.
Tenancy in Partnership
“A partnership interest is one owned by several persons, in partnership, for partnership purposes.”California Civil Code 684 In other words, a tenancy in partnership is a type of co-ownership in which title to property is held in the name of the partnership. This means that the partnership, rather than an individual, owns the property. Partners have undivided interests in the property, but cannot transfer these interests to a party outside of the partnership. Indeed, a “partner is not a coowner of partnership property and has no interest in partnership property that can be transferred, either voluntarily or involuntarily.”California Corporation Code 16501
Community property is a type of property that is only available to married couples. Both assets and debts that are acquired during the course of a marriage belong to both spouses equally as community property. “For the purpose of division of property on dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property.”California Family Code 2581
Ending Co-Ownership Disputes
Disputes can arise at any time that may leave co-owners dissatisfied with their current co-ownership arrangement. Individuals who have a tenancy in common or a joint tenancy may choose to forcefully end their co-ownership relationship through a partition action. Note that a partition is not available in “an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property….”California Code of Civil Procedure 872.210
Talkov Law's Partition Attorneys Can Help
If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. With six, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled 250 partition actions throughout California. Every case has resulted in a sale to either a third party or one of the co-owners. Not a single court has denied our clients the right to partition or declared our client to be a non-owner. Plus, for qualified cases, there is no fee until we settle or win your case!
|↑1||California Civil Code 682|
|↑2||California Civil Code 685|
|↑3||California Civil Code 683(a)|
|↑4||Colmet-Daage v. Cremoux, No. H045033 (Cal. Ct. App. Apr. 5, 2021)|
|↑5||Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1317.|
|↑6||California Civil Code 684|
|↑7||California Corporation Code 16501|
|↑8||California Family Code 2581|
|↑9||California Code of Civil Procedure 872.210|