Legal Question in Real Estate Law in California

Re: Joint tenant creates renta agreement without other tenant approval

The answer is yes, with the following important qualifying explanation.

Each cotenant (whether joint tenant or tenant in common) has an undivided right of possession of the entire property. This means that if you and I co-own a farm, you can live in the house, and so can I; I can plant corn on the north 40, and so can you; and on and on. We each have rights to the whole thing, and to each of its parts, neither interest superior to the other. The law assumes that we'll get along and work things out.

Along with the right of possession goes the power to alienate that right, for example, by creating leases and rentals.

However, each co-owner can only deal with his own rights and interests, and not with the co-owner's rights and interests. Therefore, if X and Y are co-owners, X can rent to Z, and then Y and Z will share the right of possession of the entire property formerly held by X and Y.

It's much like when a roommate moves out and turns over his or her space in the shared apartment to a stranger. The tenant of one of two co-owners becomes a kind of "roommate" with the other co-owner, like it or not.

For this reason, leases by one joint tenant without the consent of the other joint tenant usually occur only when the non-leasing joint tenant is not on the scene and not likely to resurface during the term of the lease. Such rentals also tend to cause litigation and angry confrontations when the absentee owner returns and finds a stranger in "his" half-owned house.

So, the principle is that one co-owner can lease his interest, but not the other co-owner's interest. Such a lease is sufficient to give lawful possession to the renter, but the renter's possessory right is subject to the other owner's right of simultaneous possession.

So, your co-owner's attempt to rent the property doesn't dispossess you; it merely gives you a different co-possessor for the duration of the lease.