When my father died, he left his home to my brother, sister and myself
in a Joint Tenant arrangement.  My brother does not want to sell the
house.  He would like to fix it up and use it for a get-away home.  My
sister is non-committal. Can I sell my portion (one-third), or donate
my portion to a charity?

Hi berthab,

First, some of my sources are from cities and counties other than
yours.  This is ok, Real Estate Law is governed by the State Of
California.

Also, I would like to reiterate the disclaimer, that this Answer is
not meant to replace legal advice of any kind.  What is here, are my
findings after a thorough and exaustive search on the topic of selling
or donating property held in Joint Tenancy, in California.

...

Joint Tenancy is a "last man standing" form of property ownership. It
is commonly used when an elder wishes to pass property on to a child. 
When there are 2 or more children, this creates problems... The
property cannot be willed; upon your death, your brother and sister
inherit your (1/3) share of the property.  When one of them dies, the
"last man standing" becomes sole owner and may then will/bequeth the
property to others..  The right of survivorship prevails.

For example, a title in joint tenancy must read "John Doe, and Jane
Smith, and Harry Jones, as joint tenants,"  --or--  "John Doe, and
Jane Smith, and Harry Jones, as joint tenants with right of
survivorship."  There is no difference.  When those names change, the
joint tenancy is broken.

In a joint tenancy, you may sell (or donate) your 1/3rd share at your
leisure, which would sever the Joint Tenancy Deed.  It then, by
default, becomes a Tenancy-In-Common between your brother and sister,
and whoever the new 1/3 owner is.  There are very specific rules in
the Civil Codes as to just HOW to do sever a joint tenancy, and I have
added the relevant sections below.  In the case of multiple children,
it might be best to give everyone the right to will their share,
instead of giving the entire estate to the last man standing.

Tenancy-In-Common is where two or more people have ownership. They can
sell or donate their share as they wish, without permission from other
owners.  When one of them dies, their share can be willed to heirs.

To be clear, you cannot donate, or sell your interest in Joint Tenancy
property without severing the Joint Tenancy. Donating your share might
be a good way to ensure that you get some form of gain during your
lifetime, and that your brother could still use the property as his
"get-away home," because it's unlikely a Charity would want to "move
in."  In fact, that could be a condition of the donation.

No matter what you decide, in the meantime, you need to give someone
in your immediate family a "Durable Power Of Attorney" in regards to
the property.  If you were to become incapacitated while the property
is in joint tenancy, you --or your wife or adult children, may want to
sell your interest in the property for your medical bills. This cannot
be done without your permission, and you might not be able to sign
papers yourself.  At a minimum, since this property can't be willed to
your wife or children, this is something to consider.


================================================================================

If You Think You Don't Need a Durable Power of Attorney
http://www.nolo.com/lawcenter/ency/article.cfm/ObjectID/B76E095B-29E6-45DD-AF6FE2B5DD8445C4/catID/F7840ED7-A30B-4F4C-AFB20917AF6CA031


================================================================================

Here are the relevant Civil Codes:

CALIFORNIA CODES
CIVIL CODE
SECTION 678-703
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=31131221495+0+0+0&WAISaction=retrieve

683.  (a) 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 or herself 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.
   (b) Provisions of this section do not apply to a joint account in
a financial institution if Part 2 (commencing with Section 5100) of
Division 5 of the Probate Code applies to such account.

683.2.  (a) Subject to the limitations and requirements of this
section, in addition to any other means by which a joint tenancy may
be severed, a joint tenant may sever a joint tenancy in real property
as to the joint tenant's interest without the joinder or consent of
the other joint tenants by any of the following means:
   (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.
   (b) Nothing in this section authorizes severance of a joint
tenancy contrary to a written agreement of the joint tenants, but a
severance contrary to a written agreement does not defeat the rights
of a purchaser or encumbrancer for value in good faith and without
knowledge of the written agreement.
   (c) Severance of a joint tenancy of record by deed, written
declaration, or other written instrument pursuant to subdivision (a)
is not effective to terminate the right of survivorship of the other
joint tenants as to the severing joint tenant's interest unless one
of the following requirements is satisfied:
   (1) Before the death of the severing joint tenant, the deed,
written declaration, or other written instrument effecting the
severance is recorded in the county where the real property is
located.
   (2) The deed, written declaration, or other written instrument
effecting the severance is executed and acknowledged before a notary
public by the severing joint tenant not earlier than three days
before the death of that joint tenant and is recorded in the county
where the real property is located not later than seven days after
the death of the severing joint tenant.
   (d) Nothing in subdivision (c) limits the manner or effect of:
   (1) A written instrument executed by all the joint tenants that
severs the joint tenancy.
   (2) A severance made by or pursuant to a written agreement of all
the joint tenants.
   (3) A deed from a joint tenant to another joint tenant.
   (e) Subdivisions (a) and (b) apply to all joint tenancies in real
property, whether the joint tenancy was created before, on, or after
January 1, 1985, except that in the case of the death of a joint
tenant before January 1, 1985, the validity of a severance under
subdivisions (a) and (b) is determined by the law in  effect at the
time of death.  Subdivisions (c) and (d) do not apply to or affect a
severance made before January 1, 1986, of a joint tenancy.


================================================================================

OTHER SOURCES:

================================================================================

REFERENCE LAST PARAGRAPH:

Holding Title to California Real Estate
http://www.sanjoseproperty.com/includes/article_title.html

..."

Joint Tenancy with Right of Survivorship

    * Sole Ownership
    * Tenants in Common
    * Joint Tenancy with Right of Survivorship
    * Community Property
    * Living Trust

This form of title has some special conditions. First, all co-owners
must take title at the same time. Second, all co-owners have equal
shares. The surviving co-owner winds up owning the entire property.
This form of title is sometimes called tenancy by the entireties when
husband and wife are concerned.

After a joint tenant dies, the surviving joint tenant(s) receives the
deceased's share. The deceased's will has no effect on joint tenancy
property.

The big advantage to this is that the property does not go through
probate, thereby avoiding cost and delays. To clear the title usually
involves recording an affidavit of survivorship and a certified copy
of the death certificate.

When joint tenancy is not held by husband and wife, a joint tenant can
sell or give his property interest away without permission of the
other tenant(s). Could be a problem. If there are only two joint
tenants and one sells or gives away his interest in the property, the
title becomes a tenancy in common. ..."


================================================================================

Holding Title to Real Estate
http://www.south-county.org/REGuides/HoldingTitle.html
Five Methods of Holding Title:
- Tenancy in Common
- Sole Ownership
- Community Property
- Joint Tenancy
- Community Property with Right of Survivorship

Joint Tenancy is a form of vesting title to property owned by two or
more persons, who may or may not be married, in equal interest,
subject to the right of survivorship in the surviving joint tenant(s).
Title must have been acquired at the same time, by the same
conveyance, and the document must expressly declare the intention to
create joint tenancy estate. When a joint tenant dies, title to the
property is automatically conveyed by operation of the law to the
surviving joint tenant(s). Therefore, joint tenancy property is not
subject to disposition by will.

FAQs about Holding Title 

Who can Take Title?
Joint Tenancy - Any number of persons. Can be husband and wife. Must be legal age.

How is Ownership Divided?
Joint Tenancy - Ownership interests cannot be divided.

Who has Possession?
Joint Tenancy - Equal right of possession.

How do Owners Convey their Interest?
Joint Tenancy - Conveyance by one co-owner without the others breaks
the joint tenancy, and owners then become tenants in common.

What Will be the Purchaser's Status?
Joint Tenancy - Purchaser becomes a tenant in common with the other co-owners.

What Happens in Case of Death?
Joint Tenancy - On co-owner's death, his interest ends and cannot be
willed. Survivor owns the property by survivorship.

What is the Successor's Status?
Joint Tenancy - Last survivor owns property in severalty.

What is a Creditors Interest?
Joint Tenancy - Co-owner's interest may be sold on execution sale to
satisfy creditor. Joint tenancy is broken. Creditor becomes tenant in
common.

What is the Presumption of Law?
Joint Tenancy - Must be expressly stated and properly formed. Not favored.


================================================================================

Unlocking the Potential of Real Estate
Part I: Understanding Ownership Interests - by Philip M. Purcell
http://www.pgtoday.com/pgt/articles/unlocking_the_potential_of_real_estate.htm


================================================================================

This web site may be helpful, but for the past several hours, every
time I enter "joint Tenancy" into the search function, the resulting
page says they are "experiencing technical difficulties."

California - Department Of Real Estate - 2005 Real Estate Law
http://www.dre.ca.gov/relaw.htm


================================================================================

WELCOME TO THE LOS ANGELES COUNTY LAW LIBRARY
http://www.lalaw.lib.ca.us/


================================================================================

You might want to browse the questions and answers here:

FREE ADVICE - Legal Questions? Legal Answers!
MAIN PAGE:  http://freeadvice.com/
REAL ESTATE SECTION:  http://real-estate-law.freeadvice.com/
REAL ESTATE FORUM:  http://forum.freeadvice.com/forumdisplay.php?forumid=60

Welcome to the leading "legal advice" site for consumers and small
business owners. To learn your legal rights, click a section topic
below and find the answers to your legal questions on FreeAdvice.com.
You can also ask a question  on our active law forums. Visit our State
Law Center, locate a qualified attorney, or get a legal form or
document.

STATE LAWS LINK:  http://law.freeadvice.com/resources/statelaws.htm  
..."This feature allows you access to state laws, small claims courts,
state rules and regulations, and the state judiciary. Many, but not
all, of the state laws, rules and regulations include a search
feature..."


================================================================================

RECOMMENDED BOOKS:

Deeds for California Real Estate
http://www.nolo.com/lawstore/products/product.cfm/ObjectID/EA97C65D-B6FD-4133-B9BE746E546DB381
..."Whenever you transfer real estate in the Golden State, you need a
new deed. Deeds for California Real Estate shows you how to choose the
right kind of deed, complete the required forms, then file them with
the County Recorder..."

Real Estate Law in California
http://www.amazon.com/exec/obidos/ASIN/013437617X/realestatehelp00/103-4390864-1440608
..."a well-organized discussion of laws applicable to real-property
ownership in California. An emphasis is planed on the practical
aspects and theoretical concepts of the law..."


================================================================================

If I can be of further assistance in regards to selling or donating
property held in joint tenancy, please don't hesitate to ask via the
"Request For Clarification" feature.


~~Cynthia


Search terms used at Google:

California "sever a joint tenancy"
California "joint tenancy" law
California "joint tenancy" donate share charity
California donate "real estate" "joint tenancy"
California donate property charity "joint tenancy"

Cynthia,
Wow. That's a lot to go on and I am going to use it. I think there is
a piece of data that is not in there, so here goes:

If, in an inheritance case, there are two children, one of whom is
legally disabled, a Special Needs Trust was established. This was done
during probate, as it had not been done prior.  According to (my)
probate lawyers, the SNT allows the disabled child to inherit any
assets or money which exceeds State disability requirements (anything
over an income of $1000 a month makes a disabled person unqualified
for their SSI disability assistance), without losing Government
Disability Assistance (SSI and Medical).

So, in the case of inheriting a home, the two inheritors will then
become Joint Tenants, right?

But actually, the Joint Tenancy will be between the one able-bodied
child, and the Special Needs Trust, right?

So can a person "donate" their part of the title in this situation?

I ask because my brother, who is disabled, I think would benefit more
from the asset if I held full title, and was able to distribute funds
more freely to him.  Most importantly, if he were to pass away, then
this relationship with the SNT becomes a relationship with the State
of California, who will in turn make a claim against the trust for a
particular amount (what the state feels is owed to them, for care of
the disabled), which essentially, will cause me to be forced to sell
the property, in order to translate the asset (a home) into real money
(cash) in order to meet their demands.

It seems that if there is anything I can do early in the situation, in
order to protect myself and my brother from disruption and
state-forced action, then I would like to do so.

Have you come across this information in your extensive research?

Tania