California Partition Law Blog
No, not unless they want to convert their own, singular interest into two or more shares. The reason for this is that grantors in a deed can only convey what they already own. If two tenant in common co-owners want to make themselves joint tenants, then they can collectively convey their interests to themselves in a deed. This works because, together, they own the whole property.
But if one co-owner conveys the property to himself, and declares that he is now a joint tenant, that doesn’t work. Only half the property is being conveyed, and only one person is receiving the property. This does not meet the requirements of California’s Civil Code, which requires that a joint tenancy vest in two or more persons with equal shares. (Civ. Code § 683.)
What is a Joint Tenancy?
A joint tenancy is a common form of joint ownership in the state of California. But in order to understand how it works, it’s best to begin with another way co-owners hold property: tenancy in common. With a tenancy in common, two or more people co-own property in whatever shares they want to.
For instance, “Shawn” can own 80% of a house while “Julie” owns 20%. In addition, it doesn’t matter when or how the parties acquired their ownership. Perhaps Shawn received his 80% from his dad via Grant Deed. And Shawn’s brother gave Julie the other 20% via a Quitclaim Deed years later.
With a joint tenancy, none of the above applies. First, all the co-owners need to own the property in equal shares. (Tenhet v. Boswell (1976) 18 Cal.3d 150, 155.) An 80/20 split cannot work. Second, all cotenants need to get their interests at the same time, through the same instrument. In the situation above, even if Shawn and Julie were 50% owners, they wouldn’t be joint tenants because Shawn received his interest first. And even then, had he and Julie received their shares on the same day, they still would not be joint tenants because Shawn received his interest from deed, while Julie received hers from another.
The reward for meeting all of these stringent requirements is what is called the “right of survivorship.” This right means that if one co-owner dies, their interest automatically goes to the other joint tenant(s). Joint tenancies are common among married couples, that way if one dies, the other spouse receives the deceased’s interest.
How is a joint tenancy created?
To create a joint tenancy there are two overarching requirements. The first, as stated in the Civil Code, is that the deed or other instrument creating the joint tenancy must contain an express declaration that the parties are to be joint tenants. Put simply, the deed has to have the words “joint tenant” or “joint tenancy.” This is a technical, but mandatory requirement. (Gonzales v. Gonzales (1968) 267 Cal.App.2d 428, 435.)
The second requirement is the presence of the so-called “four unities.” These are (1) time, (2) title, (3) instrument, and (4) possession. Really, all this means is that the joint tenants all receive the same ownership percentages, at the same time, via the same instrument (e.g., a deed). (Tenhet, 18 Cal.3d at 155.)
If these two requirements are present, a joint tenancy may be created. But the absence of any of the “four unities” destroys the joint tenancy, and converts it into a tenancy in common. So if one joint tenant conveys their interest to someone else, even themselves, the unities of time and title are no longer present, and thus the joint tenancy terminates.
Can a joint tenancy be converted unilaterally?
Under the law, any one joint tenant can effectively end the joint tenancy by “severing” it. In other words, a joint tenant can unilaterally end the joint tenancy by conveying their share to themselves or executing an express declaration of severance. (Estate of Propst (1990) 50 Cal.3d 448.)
But does that unilateral action work both ways? If one joint tenant can convert the joint tenancy to a tenancy in common, can one tenant in common convert it into a joint tenancy? The law suggests this is not possible. And the reason for this goes to the laws of deeds.
All deeds in California need to be signed by the “grantor,” i.e., the person conveying the property. (Civ. Code § 1091; CCP § 1971.) This requirement has two purposes. First, the “grantee,” i.e., the person receiving the property, needs to know who the property is coming from. The reason for this identification goes into the second purpose of the signature, which is to assure that the grantor actually has the interest they are purporting to convey.
So, if the property is co-owned, one co-owner cannot convey the entire piece of property to a third party, unless the other co-owner also signs the deed as a grantor. “A deed signed and acknowledged by persons named therein as grantors… is not the deed of those not named in the body of the instrument.” (Cordano v. Wright (1911) 159 Cal. 610, 617.)
Why does unilateral conversion not work?
For example, suppose that Shawn and Julie are tenants in common. Shawn has proposed converting their ownership into joint tenancy, but Julie is scared that it will trigger a property-tax reassessment, so she doesn’t agree. Shawn decides to take matters into his own hands.
He executes a deed conveying his 50% ownership interest to himself, but states that he receives the property as a “joint tenant.” This may meet the Civil Code’s requirement of an express declaration. (Civ. Code § 683.) However, this does not meet the Civil Code’s requirement that the instrument convey property to grantees, plural.
And even if Shawn tried to convey the whole property to himself and Julie as joint tenants, that would not work either. Both he and Julie would need to sign the deed, because both he and Julie are owners. Without Julie’s signature, she cannot be a grantor of her interest.
How the Lawyers at Underwood Law Firm Can Help
The differences between tenancies in common and joint tenancies can have massive effects in partition actions and probate proceedings. Both have different rules for contribution, transferability, and more. For the inexperienced litigant, the next steps might seem impossible to determine. Fortunately, the lawyers at the Underwood Law Firm specialize in partition actions and solving the difficult problems that can accompany them. If you have found yourself in one of these situations, then please do not hesitate to contact us today. Learn more about Real Estate Law here.