This article seeks to explain the meaning of a joint tenancy as compared to other forms of co-tenancy, explains the meaning and importance of the severance of a joint tenancy, and explains the means by which a joint tenancy in real estate may be severed. Before or after the severance, jointly owned property can be sold through a partition action in California. Making the decision to sever joint ownership of a property pursuant to California Civil Code § 682 requires the assistance of a trusted real estate attorney, preferably with experience in real estate litigation.
What is a Joint Tenancy?
Co-tenancy is a legal term used to designate ownership of several people with undivided interests in real property. There are four forms of co-tenancy, with one of these four types called a “joint interest.” California Civil Code § 682(a). Further, California Civil Code § 683(a) defines a joint tenancy and explains the method required to create a joint tenancy as follows:
A joint interest is one 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 , 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). In short: “Such an estate requires unity of interest, unity of title, unity of time, and unity of possession.” McDonald v. Morley (1940) 15 Cal. 2d 409, 412. Thus, the joint tenants must obtain an equal title interest and right to possession of the property at the same time by way of a written instrument explicitly noting that the property is being taken in the form of a joint tenancy.
Right of Survivorship and its Relationship with Joint Tenancy Severance
“The principal and distinguishing incident of joint tenancy is the right of survivorship.”
“While both joint tenants are alive each has a specialized form of a life estate, with what amounts to a contingent remainder in the fee, the contingency being dependent upon which joint tenant survives.”
Zeigler v. Bonnell (1942) 52 Cal. App. 2d 217, 220. Thus, the main difference between a joint tenancy and other forms of cotenancy is the right of the surviving joint tenant to assume the full ownership of the other joint tenant’s interest in the property upon their death. The following quote sheds light on the importance of the severance of a joint tenancy to create another form of co-tenancy:
This “right” is a mere expectancy that arises “only upon success in the ultimate gamble survival and then only if the unity of the estate has not theretofore been destroyed by voluntary conveyance . . ., by partition proceedings . . ., by involuntary alienation under an execution . . ., or by any other action which operates to sever the joint tenancy.
Riddle v. Harmon (1980) 102 Cal. App. 3d 524, 525–27. Thus, a simple act taken to sever the joint tenancy extinguishes the right of survivorship and the property is then held as tenants in common without the right of survivorship. Hammond v. McArthur (1947) 30 Cal.2d 512, 514.
How to Sever a Joint Tenancy
Joint Tenancy Severance by Conveyance
Can a joint tenant transfer their interest? California courts have ruled that when one joint tenant conveys her interest to a third party, then the four unities of a joint tenancy are destroyed and the joint tenancy is terminated. Wilk v. Vencill (1947) 30 Cal.2d 104, 108; Smith v. Morton (1972) 29 Cal.App.3d 616, 620. This conveyance to a third party may occur without the knowledge or consent of the other joint tenant(s). Riddle v. Harmon (1980) 102 Cal.App.3d 524, 527.
Termination of a Joint Tenancy by Written Declaration
A mutual agreement between joint tenants that is inconsistent with one or more of the four essential unities of a joint tenancy or that alters the title interests therein may sever the joint tenancy. Estate of Blair (1988) 199 Cal.App. 3d 161, 169. Further, California Civil Code § 683.2(a)(2) states:
Execution of a written instrument that evidences the intent to sever the joint tenancy, including a deed that names the joint tenant as transferee, or of a written declaration that, as to the interest of the joint tenant, the joint tenancy is severed.
However, while one joint tenant does not have to know about the written declaration, the unilateral declaration is not effective to sever the joint tenancy or the right of survivorship unless:
(1) Before the death of the severing joint tenant, the deed, written declaration, or other written instrument effecting the severance is recorded in the county where the real property is located.
(2) The deed, written declaration, or other written instrument effecting the severance is executed and acknowledged before a notary public by the severing joint tenant not earlier than three days before the death of that joint tenant and is recorded in the county where the real property is located not later than seven days after the death of the severing joint tenant.
California Civil Code § 683.2(c).
Keep in mind that all of this information likely does not apply to property a married couple owns as joint tenants. Spouses looking for information about how to sell jointly owned property in a divorce should refer to this article about the sale of property in a divorce, written by a California divorce attorney.
Contact a Trusted California Real Estate Attorney
Understanding how to sever a joint tenancy with right of survivorship under California Civil Code § 683 requires careful consideration and knowledge of the law. A skilled real estate attorney can advise you on the ins and outs of severing a joint tenancy, including any potential legal repercussions or consequences, as well as other co-tenancy options you may have. For a free, 15 minute consultation with one of Talkov Law’s real estate attorneys, reach out to us online or by phone at (844) 4-TALKOV (825568).
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