Co-Owner’s Rights to Lease and Evict Tenants

//

A common issue with co-ownership is how to manage rented property. Notably, many times only one of the co-owners allows a third party to lease the co-owned property without the consent or over the objection of the other co-owners. As explained below, the law is that each co-owner may lease the property, but doing so creates complications.

The Rights of All Co-Owners to Possession of the Property

The rights of co-owners to lease arises from the law that: “One of the essential unities of a joint tenancy is that of possession. Each tenant owns an equal interest in all of the fee, and each has an equal right to possession of the whole. Possession by one is possession by all. Ordinarily, one joint tenant out of possession cannot recover exclusive possession of the joint property from his cotenant. He can only recover the right to be let into joint possession of the property with his cotenant. He cannot eject his cotenant in possession.”[1]Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451, 454–55. “Each tenant in common equally is entitled to share in the possession of the entire property and neither may exclude the other from … Continue reading This joint right of possession causes confusion among some co-owners who claim that their fellow co-owners may lose their rights to the property by moving out, which is simply a myth. In fact, this failure to recognize the right of each co-owner to occupy the property is known as an ouster.

Co-Owner’s Right to Lease the Property

Because of this joint right to possession: “Each cotenant may lease or license his or her right to occupy and use the common property to a third person to the same extent that it could be occupied and used by the lessor cotenant.” [2]Miller & Starr, Right to lease or license to a third person, 4 Cal. Real Est. (4th ed.) § 11:3 (citing Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal. 2d 585, 602) As one court explained, “a single cotenant [i.e., co-owner] may confer occupancy rights upon a third person.”[3]Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal. 2d 585, 602

Indeed, “when one tenant in common makes a…lease, it binds the other tenants in common who ratify the lease, and acceptance of benefits under the lease constitutes ratification.”[4]Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal. 2d 585, 602 Another court explained that: “One joint tenant may make a lease of the joint property, but this will bind only his share of it,” which “support[s] the conclusion that a lease to all of the joint property by one joint tenant is not a nullity but is a valid and supportable contract in so far as the interest of the lessor in the joint property is concerned.”[5]Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451, 458

Yet another court explained that “one joint tenant or cotenant is entitled to possession of the entire premises and may by lease or license transfer his right of possession to another or authorize another to exercise it.”[6]Tompkins v. Superior Ct. of City & Cty. of San Francisco (1963) 59 Cal. 2d 65, 68–69 In fact, “one joint tenant cannot cancel lease executed by another joint tenant and oust the lessee.”[7]Tompkins v. Superior Ct. of City & Cty. of San Francisco (1963) 59 Cal. 2d 65, 68–69 (describing Swartzbaugh v. Sampson (1936) 11 Cal.App.2d 451, 461); see Miller & Starr, Right to lease or … Continue reading

This joint right to lease the property when the co-owners do not agree creates complex issues requiring the analysis of an experienced co-ownership attorney.

The Rights of Co-Owners to Evict Occupants and Tenants Through an Unlawful Detainer

The conclusion of these authorities is that “A cotenant has no right to oust a person who holds possession with the consent of another tenant in common.”[8]Verdier v. Verdier (1957) 152 Cal.App. 2d 348, 352; see Miller & Starr, Right to lease or license to a third person, 4 Cal. Real Est. (4th ed.) § 11:3 (“a cotenant who does not join in a … Continue reading A secondary source suggests that: “The other cotenant cannot cancel the lease or recover exclusive possession of the entire property, nor may such person sue the lessee or licensee as a trespasser unless a proper notice to quit or other act showing a termination of the license or tenancy has been given.”[9]16 Cal. Jur. 3d Cotenancy and Joint Ownership § 44 (citing Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451 and Ord v. Chester (1861) 18 Cal. 77 Indeed, one case dating back to 1861 found that the answer to “whether a party put in possession or allowed to occupy a portion of premises by one tenant in common can be sued as a trespasser by another tenant in common” depends upon whether there was a “notice to quit or other act showing a termination of this license or tenancy.”[10]Ord v. Chester (1861) 18 Cal. 77, 80 Effectively, the authorities suggest that a tenant(s) under a lease signed by only one co-owner must be treated as any other tenant entitled to notice and an unlawful detainer action.

The bottom line is that co-ownership creates complex issues when one co-owner has entered into a lease. The issues may include whether the lease is in writing, whether the lease can be terminated, and whether the lease is effective beyond the statute of frauds period of one year.

Right to Damages for Leasing the Property

“Ordinarily one joint tenant cannot maintain an action against his cotenant for rent for occupancy of the property or for profits derived from his own labor. He may, however, compel the tenant in possession to account for rents collected from third parties.”[11]Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451, 454–55 This recovery of damages can occur as part of an accounting in a partition action.[12]The default rule in California, as explained by Willmon v. Koyer (1914) 168 Cal. 369, 372–373, is that: As an incident to cotenancy relationship, either cotenant has a right to demand of the … Continue reading

Partition Action Referee May Remove Occupants

When a co-owner files a partition action, a third party partition referee will be appointed to market, sell, and then equitably distribute the proceeds of the property among the co-owners. In the event that tenants remain on the property, the court may give the referee instructions to have all tenants vacate the premises. See Code Civ. Proc. Section 872.120 and 872.130. They may even be authorized by court order (otherwise known as a writ of possession) that allows the Sheriff to enter the property to turn over possession to the referee. This process is exactly what would occur in an eviction.

Contact an Experienced Co-Ownership Attorney in California

If you have a co-owner who has leased possession of a part or all of the property you own together, know that you have rights to end this co-ownership relationship and recover damages. Conversely, if you wish to obtain title to a property you reside in from a co-owner who does not agree with your leasing decisions, a partition attorney can assist.

A partition action allows both parties to receive their proportion of an equity in a property fairly, justly, and legally. An experienced partition attorney can answer questions you have regarding moving out of and selling a jointly owned property in California. For a free, 15 minute consultation with an attorney at Talkov Law, reach out to us online or by phone at .

References

References
1 Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451, 454–55. “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.”Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548. Another court explained that: “[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.” Wood v. Henley (1928) 88 Cal.App. 441, 452
2 Miller & Starr, Right to lease or license to a third person, 4 Cal. Real Est. (4th ed.) § 11:3 (citing Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal. 2d 585, 602)
3 Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal. 2d 585, 602
4 Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal. 2d 585, 602
5 Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451, 458
6 Tompkins v. Superior Ct. of City & Cty. of San Francisco (1963) 59 Cal. 2d 65, 68–69
7 Tompkins v. Superior Ct. of City & Cty. of San Francisco (1963) 59 Cal. 2d 65, 68–69 (describing Swartzbaugh v. Sampson (1936) 11 Cal.App.2d 451, 461); see Miller & Starr, Right to lease or license to a third person, 4 Cal. Real Est. (4th ed.) § 11:3 (“The other cotenants cannot cancel the lease or license; nor can they recover exclusive possession of the entire property”)
8 Verdier v. Verdier (1957) 152 Cal.App. 2d 348, 352; see Miller & Starr, Right to lease or license to a third person, 4 Cal. Real Est. (4th ed.) § 11:3 (“a cotenant who does not join in a lease is…only entitled to the enjoyment of possession with the lessee or licensee, and if they dispossess the lessee, they may themselves be liable for trespass,” citing Verdier v. Verdier (1957) 152 Cal.App. 2d 348, 352)
9 16 Cal. Jur. 3d Cotenancy and Joint Ownership § 44 (citing Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451 and Ord v. Chester (1861) 18 Cal. 77
10 Ord v. Chester (1861) 18 Cal. 77, 80
11 Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451, 454–55
12 The default rule in California, as explained by Willmon v. Koyer (1914) 168 Cal. 369, 372–373, is that:

As an incident to cotenancy relationship, either cotenant has a right to demand of the other an accounting as to rents and profits of the cotenancy… The right to this accounting as to rents and profits inures to either cotenant as soon as the other has collected them, and the right to demand a proportionate share and maintain an action therefor on refusal to pay it then arises.

See Howard v. Throckmorton (1881) 59 Cal. 79, 85 (ruling that one co-owner “be charged with the said sums of money received by said [joint tenant] for rents”). Additionally, California courts generally rule that “one tenant may maintain an action requiring his cotenant to account for rents collected from their property from third persons to whom the property is leased.” McWhorter v. McWhorter (1929) 99 Cal.App. 293, 296.

Avatar photo
About Talkov Law

The attorneys at Talkov Law solve co-ownership disputes by representing co-owners in real estate partition actions throughout the State of California.

Talkov Law is Rated 5 out of 5 stars based on 79 customer reviews.

Contact Us to Schedule Your Complimentary Consultation

    Awards and Recognition

    US News and World Report Scott Talkov

    We Have Been Featured On:

    The Real Deal

    Recent Blog Posts

    The information on this site, including the Talkov Law Blog, is intended for general information purposes only. By using this site, you agree that any information contained in the site does not constitute legal, financial or any other form of professional advice. Information on this site may be changed without notice and is not guaranteed to be complete, accurate, correct or up-to-date.