1. Concurrent Estate in Land Flashcards
Tenancy in Common
Estate with multiple tenants where each co-tenant owns distinct, undivided interest and each has right of possession of whole estate.
CHARACTERISTICS:
♣ Freely transferable: each interest is freely descendible, devisable and alienable.
♣ Co-tenants only share right of possession
♣ Partition: co-tenant can force partition at any time and take sole ownership of her share in estate while remaining parties hold their interest as tenants in common.
Joint Tenancy’s Four Conditions:
♣ 1. Time: joint tenants must take their interests at the same time
♣ 2. Title: joint tenants must receive their conveyance through the same instrument
♣ 3. Interest: joint tenants must have equal and identical interests
♣ 4. Possession: joint tenants must have equal possessory rights
Joint Tenancy
o Alienable but not devisable or descendible
♣ If one joint tenant dies, surviving joint tenant automatically takes equal possession of deceased joint tenant’s share
o Express intent required: grantor must expressly intend to create joint tenant; otherwise, tenancy in common is presumed.
o Severance & transfer of interests
♣ Severance: creates tenancy in common
♣ Transfer of interest: joint tenancy interest becomes tenancy in common upon transfer; this does not destroy entire joint tenancy if two or more joint tenants remain.
o Mortgages:
♣ Lien Theory: (majority) joint tenant can take a mortgage on her interest without severing joint tenancy
Title Theory: (minority) joint tenant is severed if any joint tenant takes a mortgage on her interest because title passes to the mortgagee.
Tenancy by the Entirety
o Marital estate similar to joint tenancy but between married couples
♣ Requires same 4 conditions as joint tenancy
Severance
♣ Four ways to sever (turns into tenancy in common):
• 1. Death
• 2. Execution by a joint creditor (e.g. foreclosure)
• 3. Mutual agreement of the parties in writing
• 4. Issuance of a divorce decree
o Protected from creditors: creditors of one spouse cannot reach that spouse’s interest; only creditors of couple
o No right of partition: one spouse cannot unilaterally convey her interest; attempt to do so is invalid and will not destroy the tenancy
o Right of Survivorship: property automatically passes to surviving spouse
Duties for Concurrent Estates in Land:
o Possession
♣ Each co-tenant has the right to possess the whole
o Rent from a co-tenant in exclusive possession
♣ A co-tenant in exclusive possession is not liable to co-tenants for rent
o Rent from 3rd Parties
♣ A co-tenant leasing out the premise must account for the share of the co-tenants
o Adverse possession
♣ Tenant may not acquire title to the exclusion of co-tenants through adverse possession
o Carrying costs
♣ Each tenant is responsible for his fair share of taxes, interests
o Repairs
♣ Co-tenant may seek contribution for reasonable repairs, but must inform co-tenants before making repairs
o Improvements
♣ No right to contribution for improvements; but co-tenants are entitled to credit for an increase in value attributable to the improvement
o Waste
♣ A co-tenant can bring an action for waste against another co-tenant during the life of the tenancy
o Partition/forced sale
♣ Joint tenants and tenants in common can bring an action for partition or seek a forced sale and apportion the proceeds.
