Can you remove someone from a deed without their knowledge?
Owning property can come in different forms of ownership which grants you different rights. If you acquire an interest in property by sale or inheritance you may end up holding a percentage property interest while another person holds the other part of that interest. When co-owning property with someone, both of your names are on the deed which gives you certain abilities and rights.
What does being a cotenant mean?
A tenant in common means you can hold title in different ownership percentages. Title is usually granted by a deed or similar document. Co-tenants can hold uneven ownership percentages, like person A owning 67% while person B owns 33%. (Donnelly v. Wetzel (1918) 37 Cal.App.741.) This is different from owning property as joint tenants where property is held in equal portions.
Even with co-tenancy allowing different ownership percentages, each co-tenant still has the equal right to possession of the property. (S.L. Rey (1993) 17 Cal.App.4th 234, 242.) This means even if two people own a home as tenants in common, one of those individuals could live in the house on their own. (Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1189.) Because these property interests are held separately of each other if one co-tenant encumbers their interest, like placing a lien on it, that encumbrance will attach only to their interest. (Schoenfeld v. Norberg (1970) 11 Cal.App.3d 755, 765.)
What rights do you have as a cotenant?
As a cotenant you have a right to possession that allows you to occupy the entire property whenever you want. (Preciado v. Wilde (2006) 139 Cal.App.4th 321, 323.) This is permissible only if you are not excluding the other co-owner even if it is just for a period of time. (Krum v. Malloy (1943) 22 Cal.2d 132, 135.) You cannot purposely exclude your co-owner.
Your right to occupy the property also means you can grant the right to possess the property to a third party.” (Verdier v. Verdier (1957) 152 Cal.App.2d 348, 352.) A co-owner or co-tenant can lease their interest to a third party as a renter. The co-tenant then receives rent money. That lessee (or tenant) through a lease is able to possess the entire property and temporarily holds the rights that the lessor or co-owner enjoys. (Swartzbaugh v. Sampson (1936) 11 Cal.App.2d 451, 457.)
The co-tenant lessor can collect the rent payments made by the tenant under the lease agreement as they stem from his right in the property. (In re Knox’ Estate (1942) 52 Cal.App.2d 338, 354.) However, each co-tenant is entitled to a share of those profits derived from the tenant’s use of the common property. This share is proportionate to the co-owners’ respective percentages of ownership. (Garcia v. Andrus (9th Cir. 1982) 692 F.2d 89, 92.)
Can you remove another cotenant from the deed?
Similar rights apply to co-tenants regarding the instrument giving them title. This confirms the co-owner’s right in the property, essentially granting them their percentage of ownership. (Estate of Stephens (2002) 28 Cal.4th 665, 672.) A co-tenant cannot unilaterally remove another co-tenant from a deed, unless the other owner grants that co-tenant their interest.
A cotenant can sell their own interest without approval or agreement by the other co-tenant. (Wilk v. Vencill (1947) 30 Cal.2d 104, 108-109.) However, a co-tenant cannot sell the entire property to remove the other owner from the deed. (Linsay-Field v. Friendly (1995) 36 Cal.App.4th 1728, 1734.) In a similar vein you cannot cancel a lease made by another co-tenant without giving the tenant proper notice. (Swartzbaugh v. Sampson (1936) 11 Cal.App.2d 451, 461.)
As such, you cannot remove a co-tenant from a deed without their knowledge. If you did so you would be violating their property rights. It may also be construed as ouster and in a lawsuit for ejectment the court may choose to award the entire property to that co-tenant you tried to remove from the deed.
What does ousting a cotenant from the property mean?
Because of a co-tenant’s ability to possess an entire property without excluding or violating the other co-tenant’s right to possession, ouster requires affirmative acts that clearly show that possessing co-tenant’s intent to exclude the other. These acts must be open and notorious, clearly giving notice to the other co-tenant. (Askley v. Bassett (1922) 189 Cal. 625, 642.) This means the co-tenant in possession is claiming the whole property for themselves, denying that the other co-tenant has title, or refusing their co-tenant entry. (Zaslow v. Kroenert, (1946) 29 Cal.2d 541, 548.) Ouster may also be something as overt as putting up no trespassing signs on the property and changing the locks on the doors. (Id.) While a co-tenant can bring a claim for ejectment in response to another co-tenant dispossessing them of the property, if the possession goes on for long enough that claim may fail.
What are some examples of removing a cotenant from possession?
For example, Julie and Shawn are co-tenants who own a home, with Julie owning 70% and Shawn owning 30%. Julie or Shawn could both live in the house alone and not be violating either’s right as a co-tenant. However, if Julie was living in the house and changed all the locks to try to keep Shawn out, Shawn would have a cause of action for ejectment, and he would be able to claim he was ousted by Julie.
Alternatively, if Shawn was living in the property by himself and needed to make payments on utilities, he could seek partial payment from Julie. The same would be the case if he decided to renovate the kitchen increasing the value of the entire house.
However, if Shawn just wanted to change the paint color because he did not like it, he would likely be unsuccessful in getting partial payment from Julie.
Julie could decide to rent out the house to a third-party renter named Sarah. Sarah would pay Julie rent. Assuming Sarah was occupying the entire property, the rent would be split in accordance with Shawn and Julie’s ownership interests. This means if the monthly rent was $2,000 Julie would receive $1,400 or 70% and Shawn would receive $600 or 30%. Shawn (or Julie) could only evict Sarah if they gave proper notice, or she might file an unlawful detainer lawsuit.
Julie and Shawn could individually choose to sell their interests in the property. However, Julie or Shawn would not be able to unilaterally remove each other from the deed. Doing so might create a claim for ouster. If Julie or Shawn wanted to get rid of their interest in the home and the other did not want to, they might need to begin an action for partition.
Conclusion
Co-tenancy guarantees the right of possession and the ability to sell one’s own interest in property. However, it does not permit a co-tenant to remove another owner from the deed. If title to property is a point of contention, partition may be a solution. At Underwood Law, our partition attorneys can help you navigate your partition action efficiently and with care. We are here to help.