(2) Property: Concurrent Ownership

Question 1

Types of Concurrent Ownerships

Answer 1

1. Joint Tenancy
2. Tenants in Common
3. Tenancy by Entirety

Question 2

Joint Tenancy - Formation

Answer 2

A conveyance of real property to 2 or more persons creates a joint tenancy when 4 unities are present with the right of survivorship: (1) unity of time (all interests are received at the same time); (2) unity of title (all interests were acquired by the same instrument); (3) unity of interest (all ownership interests are equal); AND (4) unity of possession (all interests have equal rights of possession).

Question 3

Does there need to be an intent to create a joint tenancy?

Joint Tenancy - Formation

Answer 3

There must be clear express intent to create a joint tenancy which is satisfied by including terms such as “joint tenant”, “right of survivorship”, “jointly”

Question 4

Overall Rule & Severance Theories

Severance

Joint Tenancy - Overview

Answer 4

Overall Rule: Severance of a joint tenancy will turn it into a tenancy in common.
1. Lien Theory (majority)
2. Title Theory
3. Lease Theory

Question 5

Lien Theory

Joint Tenancy - Severance

Answer 5

When a joint tenant grants a mortgage on their interest in lien theory states the mortgage is only a lien on the property and doesn’t sever the joint tenancy.

Question 6

Title Theory

Joint Tenancy - Severance

Answer 6

When a joint tenant grants a mortgage on their interest in title theory states the mortgage severs the joint tenancy as it is a transfer of title.

Question 7

Lease Theory

Joint Tenancy - Severance

Answer 7

Most states follow common law rule which states that a lease by one joint tenant severs the joint tenancy and it is converted to a tenancy in common.

Question 8

Right of Survivorship

Joint Tenancy

Answer 8

Means that when one joint tenant dies his interest in the land is automatically transferred to the other joint tenants.

Question 9

Tenancy in Common

Answer 9

Tenancy in common is created when two or more persons possess the right to the property at the same time and there is no right of survivorship.

Question 10

Tenancy by Entirety

Answer 10

Tenancy by the entirety is a joint tenancy between married persons with a right of survivorship. The same rules as joint tenancy apply plus the persons have to be married when the conveyance occurs.

Question 11

Partition

Answer 11

A tenant in common or joint tenant has the right to partition which is divide the land. Tenants may partition the property voluntarily (co-tenants agree in writing to the division of land) or involuntarily (by court action).

Question 12

Involuntary Partition

Partition

Answer 12

(a) Partition in Kind (The court divides the property into distinct physical portions) or (b) Partition by Sale (they distribute the proceeds amount the co-tenants based on their ownership interest). Courts prefer a partition in kind.

Question 13

Voluntary Partition

Partition

Answer 13

The agreement the co-tenants enter must be clear and the time limitations must be reasonable.

Question 14

Co-Tenant Rent

Answer 14

A co-tenant cannot collect rent from another co-tenant who is in exclusive possession of the premises unless (a) there is an agreement to the contrary; OR (b) the co-tenant seeking rent was wrongfully ousted.

Question 15

3rd Party Rent

Answer 15

An out of possession co-tenant is entitled to a fair share of the rent paid by a 3rd party to an in-possession co-tenant.

Question 16

Reimbursement for Repairs

Answer 16

A co-tenant is entitled to reimbursement for the cost of necessary repairs unless there was a wrongful ouster. The amount the co-tenant owes is determined by the percentage share they own in the property.

Question 17

General Rule & At Tenancy Termination Rule:

Reimbursement for Improvements

Answer 17

a co-tenant is not entitled to reimbursement for improvements made to the property, unless there is a separate agreement stating otherwise.

If the co-tenancy ends and the property increased in value due to the improvements the co-tenant who completed them is entitled to the increase in value.

Question 18

General Rule / Co-Tenant in Sole-Possession Rule:

Reimbursement for Mortgage and Tax Payments

Answer 18

All co-tenants are responsible for their proportionate share of mortgage, tax payments or assessments (any payment that would result in a lien on the property if unpaid).

However, in most states a co-tenant that is in sole-possession of the property cannot recover for such payments unless the payments exceed the reasonable rental value of the property.

Question 19

Ouster of a Co-Tenant

Answer 19

All co-tenants have the right to possess the entire property. An ouster occurs when a co-tenant excludes another co-tenant from possessing the property. The party wrongfully ousted may bring an action to recover possession and damages.