Severance of a Joint Tenancy

One of the main reasons why real property held in joint tenancy is not preferable is due to its inflexible nature. If one joint tenant dies, the surviving joint tenant(s) automatically receive the interest of the deceased joint tenant. This is true even if the joint tenant wrote a will and devised their interest in the property to somebody other than the surviving joint tenant. 

In order to avoid the automatic transfer upon a joint tenant's death, severance has to occur. Civil Code § 683.2 provides various methods in which a joint tenancy can be severed:

"(1) Execution and delivery of a deed that conveys legal title to the joint tenant’s interest to a third person, whether or not pursuant to an agreement that requires the third person to reconvey legal title to the joint tenant.

(2) Execution of a written instrument that evidences the intent to sever the joint tenancy, including a deed that names the joint tenant as transferee, or of a written declaration that, as to the interest of the joint tenant, the joint tenancy is severed."

A recent appellate decision addressed the issue of whether a contested lawsuit, i.e. the filing of a complaint and the answer to the complaint, constituted severance.

Walter v. Boosinger (2016) ___ Cal.App.4th _____

The parties involved a father and a former girlfriend. Originally  father sued to resolve ownership of the property. He claimed a 2/3 interest and her share was allegedly 1/3. However, a 2003 deed named the two as joint tenants. Thereby, if the deed was valid, the ownership interests would be the same, i.e. 50/50. Further, upon the death of one joint tenant, the surviving joint tenant would inherit the decedent's share of the property, 50%, automatically. See Civil Code § 683.2. 

Right after the lawsuit was started, father died intestate and son took over the case as his administrator. Son argued that former girlfriend's answer to the complaint severed the joint tenancy. However, the Court of Appeal disagreed. It held that "Scott cites no common law authority, and we are aware of none, that holds that a court may interpret a party's complaint and another party's superseded answer to constitute an instrument that severs a joint tenancy."

The crux was that it was unclear "even from Boosinger's superseded answer, that Boosinger agreed that she and Randy owned different percentage interests in the property (and therefore were not joint tenants)."

Author's Note: in order for a joint tenancy to be valid, the interests must be the same. For example, if a deed says Randy - 66.67% and Boosinger - 33.33%, there is no joint tenancy because the interests are not equal. The son's goal was to nullify the joint tenancy and thereby avoid having Boosinger automatically receive the other 50% of the property.