3. Co-Tenancy Flashcards
What is Co-Tenancy?
Co-Tenancy is when property is being transferred to more than one person to be held concurrently.
What are the three types of concurrent ownership?
- Tenancy in Common
- Joint Tenancy
- Tenancy by the Entirety
What is a Tenancy in Common?
Tenancy in Common is concurrent ownership where co-tenants have undivided interests in the property with no right of survivorship.
What Language is required to create a Tenancy in Common?
No special words are required to create a Tenancy in Common.
Can Co-tenants hold unequal shares of the land?
Yes, tenants in common can hold unequal shares of the land.
What happens when a property is devised to multiple individuals in a will without specifying the type of interest?
They automatically hold it as tenants in common.
What type of Possession is Required for a Tenancy in Common?
Unity of possession is required.
How is a Tenancy in Common Transferred When Tenant is Alive?
A tenant in common may transfer his interest voluntarily or involuntarily.
How is a Tenancy in Common Transferred voluntarily when Tenant is Alive?
Through a conveyance, lease, mortgage, or other transfer.
How is a Tenancy in Common Transferred involuntarily when Tenant is Alive?
Through foreclosure on a mortgage or execution of a judgment creditor’s lien.
Is a Tenancy in Common Devisable?
Yes, a Tenancy in Common is Devisable.
Can a Tenancy in Common be Transferred by Intestacy?
Yes, a tenant in common may descend by intestacy.
What happens when a tenant in common wants to create an easement or resolve a boundary dispute?
It will not affect the legal rights of any other tenants in common who do not sign the grant or agreement.
What is the limitation of one tenant in common who has sole occupancy of the premises?
Only agreements that all tenants in common sign will apply to all of them.
What is a Joint Tenancy?
Joint Tenancy is concurrent ownership where co-tenants have undivided interests in the property with survivorship rights.
What is Required for a Grantor seeking a Joint Tenancy?
The grantor must use language to demonstrate the intent for the right of survivorship.
What is a Right of Survivorship?
If one joint tenant dies, the decedent’s interest terminates and the survivor’s interest increases to 100%.
How is a Joint Tenancy created?
By satisfying four unities: Time, Title, Interest, and Possession.
What are two ways that a Joint Tenancy can be terminated?
- Partition
- Severance
NOT BY WILL THOUGH!
How is a Joint Tenancy Severed?
If one joint tenant conveys their interest during their lifetime.
What happens after a Joint Tenancy is Severed?
It creates a tenancy in common between the remaining tenant and the conveyance.
Can a Joint Tenancy be re-established once it has been severed?
No, it cannot be re-established until the four unities are satisfied.
What is an involuntary conveyance of a Joint Tenancy?
It occurs when a creditor forces a sale of a joint tenant’s interest.
Can a Joint Tenancy with a Right of Survivorship be severed under a will or descending by intestacy?
No, the Right of Survivorship prevents it from being severed by a will or descending by intestacy.
What happens when joint tenants join in a mortgage on a property?
The mortgage does not affect the joint tenancy but encumbers both interests.
What happens when only one Joint Tenant Mortgages his Interest on a property?
It depends on whether the jurisdiction follows the title theory or the lien theory.
What happens When Only One Joint Tenant Mortgages his Interest in a title theory state?
It severs the joint tenancy and creates a tenancy in common.
What happens when One Joint Tenant Mortgages his Interest in a lien theory state?
It does not sever the joint tenancy, so the survivor will still inherit the land.
What happens to the Joint Tenancy when a Foreclosure happens in a lien theory state?
Foreclosure will sever the joint tenancy.
What happens when a Joint Tenant dies before the mortgagee forecloses?
The surviving tenant takes the property free of the mortgage.
What happens When One Joint Tenant does not consent to the other co-tenant Mortgaging their interest?
Only the mortgaging co-tenant’s half is subject to the mortgage.
What is Tenancy by the Entirety?
Concurrent ownership for married couples with undivided interests and a right of survivorship.
How is a Tenancy by the Entirety Created?
By deed or will, but not by descent.
How is a Tenancy by the Entirety Severed?
- By joint conveyance of both spouses;
- conveyance of one spouse to the other; or
- divorce.
What is a Partition?
When co-owners divide or separate their ownership interests in the property.
What co-tenant has the right to seek partition of the property?
Each co-tenant has the right to seek partition.
What is a Voluntary Partition?
Occurs when all co-owners agree to divide property without legal intervention.
What is Involuntary/Judicial Partition?
A court action to determine each co-tenant’s share and whether to divide or sell the property.
What are the two types of involuntary partition?
- Partition In-Kind
- Partition By Sale
What is Partition in-Kind?
Divides the property physically, granting individual ownership to co-owners.
What is Partition by Sale?
Court orders sale of the property if physical division is not feasible.
What happens when a partition cannot produce equal shares?
The party receiving the larger portion must make a cash payment to the other party.
What are the Possession rights of co-tenants on a property?
Each co-tenant is entitled to possess the whole property.
What remedy is available for a co-tenant if they are denied possession of the property?
They can bring suit for damages and/or ejectment.
What is a Wrongful Ouster of a Co-tenant?
When one co-tenant excludes another from the jointly held property.
How does a Co-Tenant Oust Themselves from the Property?
By acting in direct contravention of their co-tenant rights.
What are the rights of an Out-of-Possession Co-Tenant to Share in Rents and Net Profits of the Property?
All co-tenants are entitled to a proportionate share of the profits.
Can an Out-of-Possession Co-Tenant demand rent from the other co-tenant who is in actual possession of the property?
No, unless there’s a wrongful ouster or property depreciation.
What is the duty for Co-Tenant’s Taxes and Mortgage Payments on a Property?
Each co-tenant must pay a proportionate share.
Can one co-tenant in sole possession that pays the Taxes or Mortgage on a Property recover from the other co-tenant?
Yes, they may seek contribution or recover in an accounting or partition suit.
When can a co-tenant in sole-possession receive reimbursement for paid taxes or Mortgage on a Property?
Only to the extent that the payment exceeds the rental value.
What is the duty for Co-Tenant Repairs on a Property?
No direct duty of repair exists for co-tenants.
Can a co-tenant who makes repairs to the property be compensated?
Yes, by a set-off against third-party rents or proceeds in a partition action.
What is the duty for Co-Tenant’s Improvements to the Property?
Co-tenants are not obligated to improve the property.
Can a co-tenant get a contribution for improvements from the other co-tenant?
No, generally they cannot get contribution.
Are costs recoverable for a co-tenants improvement that generated increased rents or profits?
Yes, recoverable only in a partition suit.
Can a co-tenant recover improvements to the property if the property is sold?
Yes, they receive the attributable amount.
