What is a true joint tenancy?

Underwood-Blog-Images-4-300x300“Joint tenancy” is a phrase that most people associate with the co-ownership of a property. And indeed, this is correct. Joint tenancy is a form of co-ownership in California, second only to tenancies-in-common in terms of popularity. But just because the words “joint tenancy” are used in a deed or other property-related document does not mean one actually exists. 

For a joint tenancy to be “true” means its effects fully apply. At a minimum, ownership percentages between the owners need to be equal, and the right of survivorship has to be present between the parties. What’s more, is that if any of the statutory or legal requirements associated with its creation are missing, then the joint tenancy does not exist, and it cannot be “true.” 

At Underwood Law Firm, our attorneys are well-versed in co-tenancy and the various forms it can take, including joint tenancy. The rights and duties that follow each of these ownership schemes are unique, making them a key issue in real estate litigation. 

How is a true joint tenancy different? 

When a joint tenancy is “true,” it embraces every requirement, right, and duty associated with it. Put simply, no piece of the joint tenancy puzzle is missing, so to speak. And indeed, that puzzle can be quite large. 

If a joint tenancy really exists, it means all ownership between the co-owners is equal, regardless of acquisition costs and property expenditures. By the estate’s very definition, equal ownership is key. (CCP § 683; Milian v. De Leon (1986) 181 Cal.App.3d 1185, 1195.) So, if parties truly intend for this estate to be created, it does not matter if one spent five times more on the mortgage or down payment. Equality of interest persists. 

Of course, the other defining feature of a “true” joint tenancy is the right of survivorship. While its legal operation can be complicated, its effect is simple and incredibly powerful. When one co-owner dies, their interest automatically transfers to the other. Perhaps that is why the estate has been called the “ultimate gamble.” (Tenhet v. Boswell (1976) 18 Cal.3d 150, 156.) If one party survives the other, then the surviving party gets the other’s entire interest. 

That said, a true joint tenancy often does not end on a co-owner’s death because the estate itself is easily extinguished. For example, if one co-owner sells their interest to a third party, the joint tenancy turns into an ordinary tenancy-in-common, free of any right of survivorship. The same would also be true for any ordinary transfer of interest, even as a gift to a family member. 

The list is far more extensive, but the fact that joint tenancies can be severed unilaterally illustrates the broader principle that these estates are hard to create and equally as difficult to keep around. 

How is a true joint tenancy created? 

The requirements for the creation of a joint tenancy are two-fold: there is the common law requirement of the “four unities,” which is applicable even today, and there is the all-important requirement of it in writing. 

The four unities can be thought of as four requirements that need to exist simultaneously for a true joint tenancy estate to be created. Those four requirements are interest, time, title, and possession. 

Time, title, and interest are self-explanatory but rigorous necessities. The unity of time means that the parties acquire their interest at the same time. If one co-owner is added to a deed years after the first, there is no unity of time. Title and interest are bound together in a way. The estate needs to be created in a single instrument, and that instrument needs to designate that the ownership interests are completely equal, without exception.

Lastly, there’s the unity of possession. This is more of a broad, overarching status between the co-owners that allows each to be in possession of the whole of the property. If one owner attempts to disrupt that right to possess by, for example, committing an ouster of their fellow co-owner, then the unity of possession is destroyed. 

Even if the four unities are present, however, no joint tenancy can be “true” without it in writing. While this writing is usually a deed, it can take virtually any other form. That said, it is not an “optional” requirement. California courts have already held that an oral agreement to create a joint tenancy is void. (Estate of Horn (1951) 102 Cal.App.2d 635.)  

What if a deed has “joint tenancy” within the wording? 

As stated in the introduction, the words “joint tenancy” have become so commonplace that their use isn’t always associated with the rights actually associated with the estate. Often, parties will characterize themselves as joint tenants in a deed without realizing the powerful legal effects those words carry with them. 

For example, suppose Shawn and Julie take title to their new home as “joint tenants” in their deed, even though they never intended the right of survivorship to apply. This means that they are not “true” joint tenants. 

Nevertheless, in a lawsuit between Shawn and Julie, this could become an issue if one is standing by the wording in the deed and the other is not. This is because Evidence Code section 662 creates a legal presumption that title is actually held as described in the deed. Absent clear and convincing evidence to the contrary, the presumption will apply.

How can the Attorneys at Underwood Law Assist You?

Co-ownership can be a complicated endeavor, even more so when the rights that each party hold in the property are unclear. Often, litigants expect an estate to exist that does not, or they associate duties with their type of co-ownership scheme that doesn’t actually apply. In these situations, legal counsel can be essential to understanding one’s rights.

As each case is unique, property owners would be well-served to seek experienced counsel familiar with deeds and the law surrounding them. At Underwood Law, our knowledgeable attorneys are here to help. If you are concerned about whether your deed created a true joint tenancy, wondering how you can sever your joint tenancy, or if you just have questions, please do not hesitate to contact our office.

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