What is Tenancy in Common?

California recognizes different forms of property co-ownership, the most common and default of which is tenants in common.

California Civil Code 682 recognizes “ownership of property by several persons” in these forms:

(a) Of joint interest.

(b) Of partnership interests.

(c) Of interests in common.

(d) Of community interest of spouses.

This article specifically focuses on tenants in common as the default form of co-ownership interest that is “owned by several persons, not in joint ownership or partnership.”[1]California Civil Code 685

Tenants in Common in California Have the Right to Possess the Entire Property

California’s leading real estate law treatise, Miller & Starr, explains that “[e]ach tenant in common has an equal right of possession and, in absence of an agreement to the contrary, one cotenant cannot exclude another from the property.”[2]Requisites, 4 Cal. Real Est. (4th ed.) § 11:34.

“Each tenant in common equally is entitled to share in the possession of the entire property and neither may exclude the other from any part of it.”[3]Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548. “[T]he cotenants hold the common land by unity of possession, for which reason there can be no specific or determinate portion of the common land which any one of such tenants can claim as his in severalty.”[4]Wood v. Henley (1928) 88 Cal.App. 441, 452.

For instance, an unmarried couple or siblings who have inherited property may live together in a single-family home, with each individual having the right to access every area of the house.

Tenants in Common Can Have Unequal Shares

In essence, co-owners are allowed to possess unequal shares of the property while maintaining equal rights to use and enjoy the whole property. As explained by a secondary source, when “the interests were unequal (decedent one-fourth, defendant one-half) … the cotenancy created by the deed could only be a tenancy in common.[5]Failure of Joint Tenancy, 12 Witkin, Summary 11th Real Prop (2023) § 40.

By contrast, 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.

Tenants in Common Can Leave their Interests to Their Heirs

The death of a tenant-in-common does not impact the rights of the other parties. By contrast, the death of a joint tenant have 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. No such rule applies to tenants in common, meaning they can pass their interest by will or intestate succession.

Tenant in Common Agreements

Miller and Starr explains that co-tenants also have the option to “enter into agreements providing for exclusive rights of occupancy by one or more of them.”[6]Requisites, 4 Cal. Real Est. (4th ed.) § 11:34.

Indeed, sometimes multiple parties co-own a single piece of real estate property but do not necessarily own equal shares. A TIC agreement, short for Tenancy In Common agreement, is a legal document used to allow each tenant in common to have an undivided, fractional interest in the property, meaning that each owner has the right to use and enjoy the entire property, even though their ownership percentage may vary. A TIC agreement fundamentally changes the default rule of joint possession by way of a written agreement that each tenant in common is only allowed to possess a certain part of the property. For example, an unmarried couple or siblings after inheritance might jointly occupy a single-family property, each entitled to occupy the entire property.

Indeed, some TIC agreements have language articulating the property is not subject to California partition laws, meaning a forced sale would not be possible. There are also cases in California where a TIC agreement reserved a right of first refusal, rather than a waiver of partition.[7]LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 492.

When Tenants in Common Matter in a Partition Action

Tenants in common are subject to the Partition of Real Property Act, giving co-owners the right to force the sale of jointly owned property or buy out their co-owners. A partition action is a effective resolution when co-owners of a property are unable to resolve their disputes over the sale, management, or use of the property.

A partition allows for the court to facilitate the equitable division of property or its proceeds, addressing contributions towards mortgage, taxes, insurance, and improvements. As explained by a California court, each “partition action includes a final accounting according to the principles of equity for both charges and credits upon each cotenant’s interest. Credits include expenditures in excess of the co-tenant’s fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages, and other liens, insurance for the common benefit, and protection and preservation of title.”[8]Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035. Furthermore, attorney’s fees in a partition may also be recoverable, especially against an uncooperative co-owner.

Talkov Law’s Partition Attorneys Can Help

If you want to end your tenancy in common relationship with a co-owner, but your co-owner won’t agree, a partition action is your only option. With seven full-time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled over 300 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. Contact California’s premier partition action law firm by reaching out to Talkov Law. For a free consultation, call (844) 4-TALKOV (825568) or reach out online today.

References

References
1 California Civil Code 685
2, 6 Requisites, 4 Cal. Real Est. (4th ed.) § 11:34.
3 Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548.
4 Wood v. Henley (1928) 88 Cal.App. 441, 452.
5 Failure of Joint Tenancy, 12 Witkin, Summary 11th Real Prop (2023) § 40.
7 LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 492.
8 Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035.
About Scott Talkov

Scott Talkov is a partition lawyer in California. He founded Talkov Law Corp. after more than one decade of experience at a California real estate litigation firm, where he served as one of the firm's partners. He has been featured on ABC 7, CNN, KCBS, and KCAL-9, and in the Los Angeles Times, the Orange County Register, the San Diego Union-Tribune, the Press-Enterprise, and in Los Angeles Lawyer Magazine. Scott has been named a Super Lawyers Rising Star for 9 consecutive years. He can be reached about new matters at info@talkovlaw.com or (844) 4-TALKOV (825568). He can also be contacted directly at scott@talkovlaw.com.

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