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Court of Appeal, Fifth District, California.

Hazel TENHET, Plaintiff and Cross-Defendant and Appellant, v. W. W. BOSWELL, Jr., Does I through XX, and all other persons unknown claiming any right, title, estate, lien or interest in the real property herein described, adverse to plaintiff's ownership or any cloud upon plaintiff's title thereto, Defendants, Cross-Complainants and Respondents.

Civ. 2127.

Decided: August 07, 1975

Moran, Stringham & Rogers, William J. Kadi, Tulare, for plaintiff and cross-defendant and appellant. James G. McCain, Corcoran, for defendants, cross-complainants and respondents.


Appellant appeals from the order of the trial court sustaining respondent's demurrer to appellant's third amended complaint and the subsequent judgment of dismissal.

While there were rather voluminous pleadings in the trial court, including a cross-complaint, we need not consider these pleadings as the issues are sharply joined by the mutual and helpful recognition by both litigants of the only essential issues in the case.

The facts are not in dispute. Appellant Hazel Tenhet, and one Raymond Johnson owned a parcel of property as joint tenants. The record does not disclose whether either appellant or Raymond Johnson or both of them were in possession of the property. It is alleged that without appellant's knowledge or consent, Raymond Johnson leased the property so owned jointly to respondent, W. W. Boswell, Jr., for a period of ten years at a rental of $150.00 per year, with a provision granting the lessee an option to purchase. Some three months after the execution of the lease, Raymond Johnson died and appellant undertook procedures to establish his death, and thereby place on record her sole ownership of the property as a surviving joint tenant. She thereupon made a demand upon the lessee to vacate the premises. He refused.

She then brought an action for a declaration that respondent has no right, title or interest in the leased premises, inasmuch as the surviving joint tenant who had not joined in the lease was now the sole owner of the property by virtue of extinguishment of the joint tenancy.

In a communication to the trial court the appellant succinctly set forth the issues in this case as follows:

‘The theory underlying all plaintiff's causes of action is that a joint tenant cannot make a lease to a third person of a joint tenancy property for a period of time extending beyond the lifetime of the leasing joint tenant. To allow such a lease abrogates the distinguishing characteristics of joint tenancy, that is, survivorship.’

Respondent does not quarrel with this statement of the issues.

Though the statement of the issues be simple, their resolution is not. No issue would here arise if the leasing joint tenant, Raymond Johnson, had not died before the expiration of the term of the lease, for it is conceded by both parties that Raymond Johnson, as one of the joint tenants, had the right to lease his interest in the joint tenancy property. (15 Cal.Jur.3d, Cotenancy and Joint Ownership, section 25, p. 748; Verdier v. Verdier (1957) 152 Cal.App.2d 348, 313 P.2d 123; Swartzbaugh v. Sampson (1936)) 11 Cal.App.2d 451, 54 P.2d 73.)

Appellant contends, however, that the death of a lessor joint tenant during the term of the lease effects a cancellation of the lease where the surviving joint tenant has not consented to the lease. Neither appellant nor respondent cite any cases in direct factual support of, or in derogation of, that contention, nor have we found any.

Inasmuch as we find no helpful decisional law, no legislative enactments to guide us and no assistance from the distinguished authors of real property treatises; we are thrown upon our own resources to arrive at a decision.

Although the common law rule with respect to elements which must exist to establish a joint tenancy, namely, the unity of time, title, interest and possession, has been abolished by the enactment of Civil Code section 683, which provides that a joint tenancy is created by an instrument declaring the existence of a joint tenancy,1 the distinguishing feature of joint tenancy remains,—the right of survivorship. Only an affirmative act by a joint tenant cab dissolve the joint tenancy relationship. As an illustration, one joint tenant may convey his interest in the joint tenancy to a third party, thereby destroying the joint tenancy and converting it into a tenancy in common. But any action to terminate a joint tenancy during the lives of the joint tenants must be completed prior to the death of one of the joint tenants. For example, a joint tenant may mortgage his interest in a joint tenancy, but unless the mortgagee successfully completes a foreclosure of the mortgage against a defaulting joint tenant mortgagor obtains nothing before the death of the mortgagor, the mortgagee obtains nothing and the surviving joint tenant takes free and clear of the mortgage. The affirmative act of the joint tenant is his failure to pay off the mortgage debt. A similar rule applies to a judgment creditor who must successfully effect an execution sale of the joint tenancy interest levied upon prior to the death of the joint tenant debtor. (Zeigler v. Bonnell (1942) 52 Cal.App.2d 217, 126 P.2d 118.)

In summary, a joint tenancy is terminated only by the death of a joint tenant and the immediate and automatic vesting of title in the surviving joint tenant, or by a completed act divesting of title in one of the joint tenants prior to death, or by one or more of the joint tenants entering into an agreement which is inimical to the concept of joint tenancy. For example, in the case of McDonald v. Morley (1940) 15 Cal.2d 409, 412, 101 P.2d 690, a husband and wife entered into an agreement that upon the death of either, the property would go to their daughter. It was held that such an agreement was inconsistent with and therefore terminated the joint tenancy.

It is true that a lease as such does not purport to convey a fee interest in the leasehold. But it is equally true that a lease which extends beyond the lifetime of a leasing joint tenant is contrary to the joint tenancy concept that a joint tenant cannot contract for a performance with respect to his property, the performance of which will not be completed during his lifetime.

We think that the case of Swartzbaugh v. Sampson (1936) 11 Cal.App.2d 451, 54 P.2d 73, relied upon by respondent, offers more support, to appellant's position. After a scholarly review of cases and law treatises, the court states in Swartzbaugh v. Sampson, supra, at page 458, 54 P.2d at page 77, ‘The foregoing authorities support the conclusion that a lease to all of the joint property by one joint tenant is not a nullity but is a valid and supportable contract in so far as the interest of the lessor in the joint property is concerned.’ (Emphasis added.)

We think the phrase ‘in so far as the interest of the lessor in the joint property is concerned’ expresses a correct appraisal of our problem, whether the writer of Swartzbaugh v. Sampson, supra, so intended or not. The lessor in this case, the now deceased joint tenant, had an interest in the leased premises for the duration of his life and not beyond that term. We think it wholly unrealistic to hold that one joint tenant could lease his interest in the property, the subject of the joint tenancy, for a period of 99 years, under the provisions of Civil Code section 718, and prevent a surviving joint tenant from enjoying the undivided and unencumbered use of the property, which normally would have been his upon the death of his co-joint tenant. In the above cited example of a lease for 99 years it would be highly incongruous if one joint tenant could, by his act of leasing his undivided interest in a parcel of land without the consent of his co-joint tenant, encumber the land for such a period of years, a period which would involve in all probability a succession of owners, when the intent of joint tenancy is to vest the entire title in the surviving joint tenant. Nor do we believe that because this lease if for 10 years instead of 99 years that the basic principle involved is different.

If the intent of joint tenancy is to give to the survivor the fee in the property it seems equally important in carrying out the intent of the survivorship concept of joint tenancy to give him an unencumbered interest in the whole of the property.

We therefore hold that the lease herein litigated absent any showing of consent by plaintiff herein was terminated by the death of the joint tenant lessor. In similar situations, the remedy of a lessee of joint tenants is to assure himself that he has a lease from all of the joint tenants. In this respect he is in the same position as a lessee of community property who must assure himself that he has a lease from both spouses.

The judgment is reversed. The court is directed to overrule the demurrers to the second and third causes of action and to permit defendant to file a responsive pleading if he be so advised.



1.  Civil Code section 683 provides:‘A joint interest is one owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or by transfer from a sole owner to himself and others, or from tenants in common or joint tenants to themselves or some of them, or to themselves or any of them and others, or from a husband and wife, when holding title as community property or otherwise to themselves or to themselves and others or to one of them and to another or others, when expressly declared in the transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants. A joint tenancy in personal property may be created by a written transfer, instrument or agreement. Provisions of this section shall not restrict the creation of a joint tenancy in a bank deposit as provided for in the Bank Act.’

THOMPSON,* Associate Justice (Assigned). FN* Retired judge of the Superior Court sitting under assignment by the Chairman of the Judicial Council.

GEO. A. BROWN, P. J., and FRANSON, J., concur.

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Docket No: Civ. 2127.

Decided: August 07, 1975

Court: Court of Appeal, Fifth District, California.

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