Co-tenancy or co-ownership is largely an umbrella term used to describe ownership among multiple owners holding undivided interests in a real estate property. California law recognizes four distinct types of co-ownerships. An experienced real estate attorney can help you understand the different types of co-ownerships and identify the most suitable type for your interests.
Tenancy in Common
This is a form of co-ownership in which an interest in the property is owned by several persons that are not in a partnership or joint ownership. A tenancy in common is usually the default form of co-ownership as considered by courts. Tenants can own varying shares of property in a tenancy in common. Moreover, all co-owners enjoy an equal right to the entire property.
In the event of a co-owner’s death, their interest may get transferred through probate or some other proceeding. It’s critical to understand that the right of survivorship is not applicable to tenancy in common. In addition, tenants may also transfer their interests without affecting ownership interests or severing the tenancy in common.
In this type of co-ownership, the interest in the property is owned by 2 or more people equally. Joint tenancy is created through a single will or transfer by expressly declaring it in the will. It can also be transferred from sole owners to others or from tenants in common to joint tenants.
Other forms of joint tenancy involve the transfer of interest from spouses that hold the title as community property. Joint tenancy rights can be granted to trustees or executors. In personal property, joint tenancy can be created by written transfer, agreement, or an instrument.
As per Weak v. Weak (1962) 202 Cal.App.2d 632, 638, “[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.’”
Estate of Propst (1990) 50 Cal.3d 448, 455 states that the principal characteristic of a joint tenancy is that it allows the right of survivorship. Joint tenancy can be created through the transfer of a single instrument that allows each joint tenant with an equal share of the property.
All parties to a joint tenancy enjoy equal rights to use the property. They also enjoy a “right of survivorship.” This means that if a party dies, their ownership rights get passed on to surviving co-owners.
If a joint tenant dies, their estate automatically belongs to the surviving tenants. This can prove to be useful in avoiding the time-consuming and expensive probate process.
You can pass on your tenancy share even without having a will in place. In addition, joint owners can transfer their interest whenever they want. Taking this into account, this action would sever the joint tenancy. It will automatically convert the joint tenancy to tenancy in common.
Tenancy in Partnership
A partnership interest is owned by multiple people for the same purposes. Tenancy in partnership refers to a type of co-ownership where the title to a property is owned by the partnership instead of an individual.
All partners in a tenancy partnership possess undivided interests in real estate. They are not allowed to transfer their interests to anyone outside the partnership.
The partner is not a co-owner of the partnership property. The partner does not have a right to transfer their interests in the partnership property. This is whether they want to transfer the interests voluntarily or involuntarily. A seasoned real estate attorney can help you attain a better understanding of tenancy in partnership and also draw up the paperwork so that your interests remain protected.
This is a type of co-ownership in which the property is only available to a married couple. Both spouses have an equal share in the assets and debts that are acquired during the course of the marriage. The couple holds individual interest in the community property.
As per California law, property acquired by a couple during the course of their marriage, whether held in joint tenancy, tenancy in common, tenancy by the entirety, or community property, is always presumed to be community property for the purpose of property division in the event of dissolution of marriage or legal separation.
Partition Action for Dealing with Co-Ownership Disputes in California
Disputes can arise at any point in time between co-owners leaving them dissatisfied with their current ownership arrangement. Individuals with a joint tenancy or tenancy in common may choose to end their co-ownership forcefully through a partition action.
Partition action can be started by any party to a co-ownership. Furthermore, it’s not an available option for the option of quasi-community property, quasi-marital interest in the property, and community property. This falls under the purview of family law.
Legal Help is Here from Highly-Rated Real Estate Attorneys in California
At Peterson, Martin & Reynolds LLP, our experienced Northern California real estate attorneys can help you put an end to your co-ownership relationship. To set up your complimentary consultation, call us at (415) 399-2900 or reach us online.