California Joint Tenancy vs. Tenancy in Common

What is Joint Tenancy?

A form of co-ownership in which two or more persons own property in equal undivided interests. CC §683.

The right of survivorship is a key feature of joint tenancy.

Unless the joint tenancy is severed by any of the methods described in CC §683.2, a deceased joint tenant’s interest vests in the surviving joint tenant or tenants at the moment of death without requiring probate administration. CC §683.2(c).

Establishing Joint Tenancy

All joint tenants must acquire title at the same time, through the same document. Thus, the usual way to establish a joint tenancy in a deed is to expressly designate the grantees as joint tenants. See CC §683.

However, a joint interest in property can also be created by any of the following actions (CC §683):

1. A sole owner may make a grant to themselves and others (see Estate of Bibb (2001) 87 CA4th 461 (regarding transmutation of grantor’s separate property interest into joint tenancy held by grantor and another));

2. Tenants in common or joint tenants may make a grant

   1. To themselves or just some of them, or

   2. To themselves or any of them and others; or

3. Spouses, when holding title as community property or otherwise, may make a grant

   1. To themselves,

   2. To themselves and one or more others, or

   3. To one of them and one or more others.

Severing Joint Tenancy

Any joint tenant may sever their interest without the joinder or consent of the other joint tenants. CC §683.2(a).

Severance can be accomplished by conveyance to a “straw person” or by a written instrument showing the intent to sever the joint tenancy. CC §683.2(a). For example, a joint tenant may sever their interest by conveying their undivided interest to themselves. Such a unilateral severance is not effective unless the written instrument (CC §683.2(c)):

• Is recorded in the county in which the property is located before the death of the severing joint tenant, or

• Was executed no earlier than 3 days before the death of the severing joint tenant and is recorded within 7 days after that joint tenant’s death (see Raney v Cerkueira (2019) 36 CA5th 311.

What is Tenancy in Common?

A co-tenancy without the right of survivorship. It exists when two or more persons own property not as joint tenants or partners. CC §685.

An interest created in favor of several persons is presumed to be a tenancy in common, unless it was acquired in partnership for partnership purposes or as community property or was expressly declared to be in joint tenancy. CC §686.

The co-tenancy interest may be equal or unequal and each co-tenant may separately devise their interest in the property by will or otherwise. Estate of England (1991) 233 CA3d 1, 4.

Comparing Joint Tenancy vs. Tenancy in Common

Joint Tenancy:

1. Equal ownership

2. All joint tenants must acquire title at the same time, through the same document

3. Right of survivorship, meaning the surviving joint tenants automatically inherit the deceased tenant’s share

4. A joint tenancy can transfer their interest, but then it breaks the joint tenancy and turns it into a tenancy in common

5. A joint tenancy can be terminated by transferring ownership interest, by a sale or a gift.

Tenancy in Common:

1. Owners can have unequal interests in the property

2. Owners can acquire title at different times and through different documents

3. There is no right of survivorship, meaning, the deceased tenant’s share passes to their heirs or beneficiaries

4. Each owner can transfer their interest freely without affecting the other co-tenant

5. Terminates only when all co-tenants agree to sell or partition the property

Questions?

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