Joint Tenancy versus Tenancy in Common

In California, as in many other jurisdictions, joint tenancy and tenancy in common are two different forms of property ownership, each with its own characteristics and implications. Here's a breakdown of the key differences between joint tenancy and tenancy in common in California:

1. Ownership Shares:
   • Joint Tenancy: In a joint tenancy, all co-owners (also called joint tenants) have an equal ownership share in the property. When one joint tenant passes away, their share automatically transfers to the surviving joint tenants without the need for probate.
   • Tenancy in Common: In a tenancy in common, co-owners (tenants in common) can have unequal ownership shares in the property. Each tenant in common has a unique and separate share of the property. When a tenant in common dies, their share is passed to their heirs or beneficiaries according to their will or intestate succession laws.
2. Right of Survivorship:
   • Joint Tenancy: Joint tenants have the right of survivorship, which means that when one joint tenant dies, their share of the property automatically passes to the surviving joint tenants. This helps avoid probate and ensures a seamless transfer of ownership.
   • Tenancy in Common: There is no right of survivorship when it comes to tenancy in common. When a tenant in common dies, their share becomes part of their estate and is subject to probate proceedings.  This can prove to be very troublesome for the family and other owner(s) of the property.  
3. Transfer and Partition:
   • Joint Tenancy: Each joint tenant has an equal right to possess the entire property. Joint tenants can transfer their interest, but doing so may sever the joint tenancy and convert it into a tenancy in common. Additionally, joint tenants can seek a partition action to divide and sell the property, although this is generally discouraged due to the legal process involved.
   • Tenancy in Common: Each tenant in common has the right to possess the entire property, but their ownership interests are separate. Tenants in common can freely transfer or sell their shares without affecting the ownership status of the other tenants in common. If co-owners can't agree on the use or disposition of the property, any tenant in common can seek a partition action to force the sale of the property and division of proceeds.
4. Creation and Presumption:
   • Joint Tenancy: To create a joint tenancy, the four unities must be present: unity of time, title, interest, and possession. Additionally, explicit language (such as "joint tenancy" or "with right of survivorship") must be used in the property deed. In California, joint tenancies are presumed to have equal ownership shares unless stated otherwise.
   • Tenancy in Common: A tenancy in common is presumed if the property deed does not explicitly establish a joint tenancy. No specific language is required to create a tenancy in common.

It's important to note that property ownership laws can vary and change over time, so it's always a good idea to consult with a qualified attorney or legal professional in California to ensure you fully understand the implications of joint tenancy and tenancy in common for your specific situation.