3. Co-Tenancy Flashcards
What is co-tenancy?
Persons can have right to enjoy and possess land at the same time
What is required for a joint tenancy?
1) Same interests
- Equal + NOT divided
2) Vested at same time
3) Same title
- Same instrument
4) Same right to possession
5) Right of survivorship
- Clearly expressed
- ‘As joint tenants with right of survivorship’
How may inter vivos conveyance sever a joint tenancy?
Partition
- Voluntary/Involuntary
- ONLY Grantee’s interest is severed (NOT other JTs)
Judgment liens
- Before foreclosure => Grantee’s interest is severed (NOT other JTs)
- After foreclosure => ALL JTs’ interests are severed => Lien remains attached to Grantee’s interest (NOT other JT)
Mortgage - Lien theory (Most states)
- Before foreclosure => Grantee’s interest is severed (NOT other JTs)
- After foreclosure => ALL JTs’ interests are severed
Mortgage - Title theory (Few states)
- ALL JTs’ interests are severed (after execution of mortgage)
Leases
- ALL JTs’ interests are severed - Joint tenancy is destroyed (some states)
- NO severance - Joint tenancy is suspended temporarily for duration of lease (some states)
How may a contract to convey sever a joint tenancy?
Single JT conveys
- Even if NO title transferred yet (equitable transfer)
ALL JTs convey
- Severance (other courts) (equitable conversion doctrine) (Joint tenancy becomes mere contract right to receive purchase price) (TiC statutorily presumed)
- NO severance (common law)
Can a joint tenant’s will sever a joint tenancy?
No
- Joint tenant’s rights in property disappear at time of death
Can a joint tenant’s murder of another joint tenant sever a joint tenancy?
Yes (some states)
No (some states)
- Constructive trust is imposed on Deceased Joint Tenant’s estate
What is required for right of survivorship in a tenancy by the entirety?
Marital estate between spouses
- Right of survivorship presumed (common law)
How may a tenancy by the entirety be severed?
Death of one spouse
Divorce
- JT => TiC
‘Mutual’ agreement to convey
BOTH spouses’ joint creditors’ execution
‘Federal’ tax liens
How may a tenancy by the entirety not be severed?
‘Single’ agreement to convey (Involuntary partition)
Encumbrance
Deed
What is the difference between severance of joint tenancy and tenancy by the entirety?
Joint tenancy
- Voluntary + involuntary partition
- Single mortgage (title theory); Single mortgage + Foreclosure (lien theory)
Tenancy by the entirety
- Voluntary partition
- Joint mortgage
What is a tenancy in common?
1) Different interests
- NOT equal
- Undivided
2) Same right to possession
3) NO right of survivorship (presumed)
Can a tenant in common transfer his interest?
Voluntary
- Inter vivos transfer
- Testamentary transfer
- Inheritance
Involuntary
- Creditors
How can a co-tenant bring a possessory action against another co-tenant?
Ousting (wrongful exclusion)
- ALL Co-tenants have right to possess whole property
- NO Co-tenant has exclusive possession
Is a co-tenant in possession required to share from the profits and rents with co-tenants out of possession?
Rents from TP
Profits from exploitation of land (reduce value)
NOT profits/rents from ‘own’ use of land
- UNLESS contrary agreement/ouster
How may co-tenants enforce their right to judicial partition?
Partition in kind (fair + equitable)
- Divide tract into parcels
- Must be fair + equitable
By sale + division of proceeds
- If partition in kind NOT fair + equitable
- Must account co-tenants’ profits + taxes
