Under the common law, the main difference between a joint tenancy and a tenancy in common is that a joint tenant also has a right of automatic inheritance known as “survivorship,” pursuant to which, upon the death of one joint tenant, that tenant’s share in the property does not pass through will or the rules of intestate succession; rather, the remaining tenant or tenants automatically inherit it. United States v. Craft, 122 S. Ct. 1414, 152 L. Ed. 2d 437, 2002-1 U.S. Tax Cas. (CCH) ¶ 50361, 89 A.F.T.R.2d 2002-2005 (U.S. 2002).
Joint tenants’ right to alienate their individual shares is somewhat different from that of tenants in common, in that in order for one joint tenant to alienate his or her individual interest in the tenancy, the estate must first be severed, that is, converted to a tenancy in common with each tenant possessing an equal fractional share; most States allowing joint tenancies facilitate alienation, however, by allowing severance to automatically accompany a conveyance of that interest or any other overt act indicating an intent to sever. United States v. Craft, 122 S. Ct. 1414, 152 L. Ed. 2d 437, 2002-1 U.S. Tax Cas. (CCH) ¶ 50361, 89 A.F.T.R.2d 2002-2005 (U.S. 2002).
The rights of tenants in common and joint tenants with respect to property are the same in all respects, except that a joint tenancy features the right of survivorship. In this regard, severance of a joint tenancy converts the joint tenancy into a tenancy in common Zanelli v. McGrath, 82 Cal. Rptr. 3d 835.
Alternatively, tenants in common may each unilaterally alienate their shares through sale or gift or place encumbrances upon these shares, and they also have the power to pass these shares to their heirs upon death, as well as many other rights in the property, including the right to use the property, to exclude third parties from it, and to receive a portion of any income produced from it. United States v. Craft, 122 S. Ct. 1414, 152 L. Ed. 2d 437, 2002-1 U.S. Tax Cas. (CCH) ¶ 50361, 89 A.F.T.R.2d 2002-2005 (U.S. 2002).
The interests’ tenants in common acquire may consist of different fractional shares or estates of different durations and tenancy in common may be created by more than one conveyance instrument. The rights of tenants in common and joint tenants with respect to property are the same in all respects, except that a joint tenancy features the right of survivorship Zanelli v. McGrath, 82 Cal. Rptr. 3d 835.
When two or more persons take as tenants in common under an instrument silent as to their respective shares, a presumption arises that their shares are equal. Caito v. United California Bank, 20 Cal. 3d 694, 144 Cal. Rptr. 751, 576 P.2d 466 (1978).
Regardless of whether the joint ownership is tenants in common or joint tenancy, each joint owner, be it a tenant in common or joint tenant, has a right to occupy the whole of the property. Hacienda Ranch Homes, Inc. v. Superior Court, 198 Cal. App. 4th 1122, 131 Cal. Rptr. 3d 498 (3d Dist. 2011), as modified on denial of reh’g, (Sept. 28, 2011). Additionally, each tenant in common has a right to occupy the whole of the property, and the possession of one is deemed the possession of all; each may assume that another in exclusive possession is possessing for all and not adversely to the others. Preciado v. Wilde, 139 Cal. App. 4th 321, 42 Cal. Rptr. 3d 792 (2d Dist. 2006), review denied, (Aug. 16, 2006).
In general, the coowners of real property who are tenants in common each have an equal right to occupy their property and unless there is an agreement between tenants in common to the contrary no tenant in common may exclude any others from any part of the property. Tom v. City and County of San Francisco, 120 Cal. App. 4th 674, 16 Cal. Rptr. 3d 13 (1st Dist. 2004).
A tenant in possession may not assert adverse possession against a tenant out of possession until the tenant out of possession has had either actual or constructive notice that the possession of the cotenant is hostile to him. Vieira Enterprises, Inc. v. McCoy, 8 Cal. App. 5th 1057, 214 Cal. Rptr. 3d 193 (6th Dist. 2017), as modified on denial of reh’g, (Feb. 22, 2017) and review denied, (May 10, 2017). Actions by purchasers of partial interest at tax sale, including discing property two or three times a year to remove weeds, posting a “for sale” sign near the property, and their introducing themselves as owners of the property at a meeting, did not constitute the open, notorious and unequivocal ouster of their cotenants required to establish adverse possession of the unimproved property under a claim of right. Hacienda Ranch Homes, Inc. v. Superior Court, 198 Cal. App. 4th 1122, 131 Cal. Rptr. 3d 498 (3d Dist. 2011), as modified on denial of reh’g, (Sept. 28, 2011).
An “ouster,” in the law of tenancy in common, is the wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession. Before title may be acquired by adverse possession as between cotenants, the occupying tenant must bring home or impart notice to the tenant out of possession, by acts of ownership of the most open, notorious and unequivocal character, that he intends to oust the latter of his interest in the common property; such evidence must be stronger than that which would be required to establish a title by adverse possession in a stranger. The possession of one cotenant is deemed the possession of all; each may assume that another in exclusive possession is possessing for all and not adversely to the others. Hacienda Ranch Homes, Inc. v. Superior Court, 198 Cal. App. 4th 1122, 131 Cal. Rptr. 3d 498 (3d Dist. 2011), as modified on denial of reh’g, (Sept. 28, 2011).
Consistent with this rationale, A cotenant has no authority to bind another cotenant with respect to the latter’s interest in common property, except as they may have agreed between them. Lindsay-Field v. Friendly, 36 Cal. App. 4th 1728, 43 Cal. Rptr. 2d 71 (2d Dist. 1995). One joint tenant has not by reason of the relationship any authority to bind his cotenant with respect to such cotenant’s interest in the common property. One cotenant cannot, without special authority from the other cotenants, encumber the entire estate, and any deed of trust, mortgage, or other encumbrance given by only one cotenant affects only his interest in the property. King v. Oakmore Homes Assn., 195 Cal. App. 3d 779, 241 Cal. Rptr. 140 (1st Dist. 1987).
A cotenant who pays taxes, trust deed payments, or other charges against the property or expends money for the preservation of the property or who, with the assent of his cotenant, makes improvements to the property is entitled to contribution from the cotenant, and on partition by sale is entitled to reimbursement for those expenditures before division of the proceeds among the property owners. Thus, If one joint tenant has advanced funds on behalf of the other and there is an agreement between them for reimbursement in the event of sale of the property, that agreement can be enforced by the court Milian v. De Leon, 181 Cal. App. 3d 1185, 226 Cal. Rptr. 831 (4th Dist. 1986). A tenant in common who pays taxes assessed against the common property is, in the absence of an agreement to the contrary, entitled to a ratable contribution from his defaulting cotenant, although the payment has been made without the latter’s consent or over his objection. Marsh v. Edelstein, 9 Cal. App. 3d 132, 88 Cal. Rptr. 26 (2d Dist. 1970).
