Legal Question in Real Estate Law in California

Clarifications to a previous question: Twenty one years ago a Joint Tenancy was established between a decedent and her son when he took out a loan for renovations to the property occupied by the decedent at the time. Ten years later, lawyers representing the decedent established a living trust and record a quit claim that transferred the decedent�s interest in the property to that trust. This apparently severed the right to survivorship in the Joint Tenancy, effectively converting to Tenancy in Common between the son and the trust. One year ago the decedent passed, and two months later the son learned of a stipulation in the will stating the son was not a beneficiary unless he quit claimed his half interest in the property to the trust before the decedents death. The son solely paid the loan and the trust leased the property for the past twelve years with no proceeds provided to the son. Additionally, the decedent and her trust covered the property taxes over the twenty one year period. The trust is claiming the son is only entitled to a share equaling the value of the loan, and that he is also responsible for half of the property taxes over the period. The deed in Joint Tenancy recorded with the county twenty one years ago has no stipulations. Based on the deed and the stipulation in the will, what is the son�s percentage of the property? Given he has not occupied or received proceeds from leasing the property does he have an obligation to pay a percentage of the property taxes over the period?


Asked on 6/17/13, 5:24 am

1 Answer from Attorneys
Anthony Roach Law Office of Anthony A. Roach

The son owns a 50% interest in the property. He owns it as a tenant in common with the trust of the decedent.

When the joint tenancy was severed, a tenancy in common resulted. The severance of a joint tenancy transforms it into a tenancy in common by extinguishing the right of survivorship. (Tenhet v. Boswell (1976) 18 Cal.3d 150, 155; Re v. Re (2nd Dist. 1995) 39 Cal.App.4th 91, 96.)

Cotenants to an interest in common enjoy an equal right of possession. Unless they have otherwise agreed, all tenants in common have equal rights to possession of the property. (Meyer v. Superior Court (1927) 200 Cal. 776.) Each cotenant may occupy the whole land, or any part thereof, but cannot exclude a cotenant from occupancy. (Ankoanda v. Walker-Smith (1st Dist. 1996) 44 Cal.App.4th 610, 618.) No single tenant in common has the right to exclude the others or to recover the rental value of the property from a cotenant in possession. (Swartzbaugh v. Sampson (4th Dist. 1936) 11 Cal.App.2d 451, 455; Estate of Hughes (4th Dist. 1992) 5 Cal.App.4th 1607, 1611-1612.)

As tenants-in-common, the co-owners each have the right to lease out the entire property. Each co-owner can lease or license his or her right to occupy and use the property to a third person to the same extent that it could be occupied and used by the landlord cotenant. Any action by the other cotenants against third party tenants on the property would amount to a trespass. (Verdier v. Verdier (1st Dist. 1957) 152 Cal.App.2d 348, 352; In re Knox Estate (1942) 52 Cal.App.2d 338, 351.)

There is a right of contribution exists in favor of one cotenant who pays taxes or other liens against the entire property. That paying cotenant is enttiled to an equitable lien on the shares of the cotenants for the proportional amount of the expenditures.

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Answered on 6/17/13, 3:59 pm


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