State of California Tenants in Common Law
Tenancy-in-common is a form of co-ownership in which multiple owners ("tenants in common") share rights in the property. These tenants share a "unity of possession," meaning that each tenant has a right to possess the entire estate.
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Tenancy-in-Common
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Tenancy-in-common interests can be of any fraction of the property, and can be gained at any time. Tenancy-in-common interests have no right of survivorship; if three people own equal shares of a property as tenants in common and one of them dies, the remaining two will now have two-thirds of the property, but the deceased's one-third will pass via will or intestacy. Each tenant's interest is transferable, and may be devised in a will or inherited via intestate succession. These interests are also vulnerable to the tenants' creditors.
Creation
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Specific language required to create a tenancy-in-common varies from state to state. When no special language is used in a conveyance to two people, common law generally presumes a joint tenancy. But California presumes, in the lack of language stating otherwise, that any conveyance to multiple tenants is a tenancy-in-common. Therefore, to create a tenancy-in-common in California, one really only needs to use the words "To X and Y." To be on the safe side, however, one might say: "To X and Y as tenants in common."
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Community Property Issues
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California is a community property jurisdiction. Tenancy-in-common offers a way for a husband and wife to hold property jointly without having it classified as community property;If a husband and wife take property as tenants in common in California, the conveyance creates a special tenancy-in-common known as tenancy-by-the-entirety. However, for conveyances after 1986, property acquired by married couples in tenancy-in-common is still presumed to be community property at the time of divorce. If the parties intend that the property not be treated as community property, they must make that intent clear in the transferring instrument.
Married Woman's Presumption
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For conveyances before 1975, California employs a legal presumption known as the Married Woman's Special Presumption. If a married woman and a second party acquire property together, the law presumes it's a tenancy-in-common unless the transferring instrument says otherwise. However, if the married woman acquires property as tenants in common with her husband, upon divorce the wife's half will be considered her separate property, and the husband's half will be considered community property. The presumption intends to protect women married in an era in which the husband was usually the manager of the property.
Termination
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In order to terminate a tenancy-in-common, any tenant can bring a suit for partition, or separation of the property. Tenants may seek partition in kind, which divides the tract into parcels. They may also petition the court to sell the property and divide the proceeds among the interested tenants. Tenants in common also have the option to simply agree to partition the property among themselves. Partition removes the unified right of possession and gives each tenant his own, divided interest in the property.
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References
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