3) Ownership - Cotenancy Flashcards
cotenancy: when
can apply to present or future interests
cotenancy: kinds
1) joint tenancy
2) tenancy in common
3) tenancy by the entirety
tenancy in common: def
each cotenant owns an undivided interest in the whole of the property
but can own different %s, unllike JTs. Also no right of survivorship.
joint tenancy: def
each co-T owns an undivided interest in the whole of the property AND HAS RIGHT OF SURVIVORSHIP (this is what distinguishes)
presumption of which: (where conveyance to 2+ ppl to jointly own property)
CL: resumption of JT unless specifically state otherwise
NOW: presumption of TIC (no right to survivorship) unless specifically state otehrwise
to specifically state otehrwise, must use language to show that want right of survivorship to exist
right of survivorship: def
if property jointly owned and 1 co-T dies, property passes to surviving co-T automatically (if only 1 left, owns it outright)
takes precedent over a will or inheritance! (so you can’t will it away if someone esle has the right of survivorship)
TIC: transferability
no right of survivorship, so freely transferable ad can be willed away or inherited through intestacy
creating a joint tenancy: CL
4 unities, TTIP
1) time (must take at same time)
2) title (must take by same instrument)
3) interest (equal shares, and of same type),
4) possession (each has righ to posess the whole)
creating a joint tenancy; Modern
generally do not require unity of time/title
but YES unity of interest/possession
creating a TIC: reqs
unity of possession only (each has right to possess the whole, but can own different % interests)
tenancy by the entirety: def
1) married couples only
2) each spouse has undivided interest in the whole property + right of survivorship
(so neither spouse can unilaterally encumber)
DOES NOT EXIST in a community property state!
tenancy by the entirety: severance
any attempted conveyance/encumbrance by just one spouse is void
only ways to sever:
1) jointly convey to another
2) one spouse conveys to other spouse
3) divorce (–> TIC)
result of severing joint tenancy
TIC
joint tenancy; How to sever
note–must be done inter vivos, bc if was in will, the right of survivorship takes precedence
1) partition action
2) joint tenant sells someone else an interest
joint tenancy: severence: result
any remaining JTs are still JTs. A new person who bought someone else’s interest is TIC with the JTs
joint tenancy: what happens when JT mortgages his interest
1) majority view: lien theory: mortgage is a lien on property, so does not sever JT (tho foreclosure can)
2) minority view: title theory: mortgage is title to the property and severs the JT
either way, you’re only mortgaging the part belonging to you (so in a lien j the survivorship trumps and morgage goes away when mortgager dies)
partition
voluntary: exchange deeds or sell property
or, can ask for it in equity court
rights of cotenants: possession
each entitled to possess the whole property. If denied opssession, can bring suit for damages and/or ejectment
rights of cotenants: profits: from one co-T’s effort (+exception)
other co-Ts have no right to share in the profits
exception: they have been otsted, then entitled to a share of the profits
outster
wrongful denial of entry onto the land
right of cotenants: profits: if generated by what a 3rd party is doing w the property (rent)
all co-Ts are entitled to a proportionate share of that rent (in proportion to the ownership interest in the land)
cotenants: tax + mortgage payments
each co-T must pay proportionate share
cotenants: repairs
no duty to repair
but IF repairs AND receives 3rd party rent (or partion action) then can get a set-off
cotenants; improvements
no duty to improve or pay contribution to the one who does
if one improves and later sold, amount attributable to the improvement (even if more than cost of improvement) goes to the T who made the improvement
