3) Ownership - Cotenancy

Question 1

cotenancy: when

Answer 1

can apply to present or future interests

Question 2

cotenancy: kinds

Answer 2

1) joint tenancy
2) tenancy in common
3) tenancy by the entirety

Question 3

tenancy in common: def

Answer 3

each cotenant owns an undivided interest in the whole of the property

but can own different %s, unllike JTs. Also no right of survivorship.

Question 4

joint tenancy: def

Answer 4

each co-T owns an undivided interest in the whole of the property AND HAS RIGHT OF SURVIVORSHIP (this is what distinguishes)

Question 5

presumption of which: (where conveyance to 2+ ppl to jointly own property)

Answer 5

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

Question 6

right of survivorship: def

Answer 6

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)

Question 7

TIC: transferability

Answer 7

no right of survivorship, so freely transferable ad can be willed away or inherited through intestacy

Question 8

creating a joint tenancy: CL

Answer 8

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)

Question 9

creating a joint tenancy; Modern

Answer 9

generally do not require unity of time/title

but YES unity of interest/possession

Question 10

creating a TIC: reqs

Answer 10

unity of possession only (each has right to possess the whole, but can own different % interests)

Question 11

tenancy by the entirety: def

Answer 11

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!

Question 12

tenancy by the entirety: severance

Answer 12

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)

Question 13

result of severing joint tenancy

Answer 13

TIC

Question 14

joint tenancy; How to sever

Answer 14

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

Question 15

joint tenancy: severence: result

Answer 15

any remaining JTs are still JTs. A new person who bought someone else’s interest is TIC with the JTs

Question 16

joint tenancy: what happens when JT mortgages his interest

Answer 16

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)

Question 17

partition

Answer 17

voluntary: exchange deeds or sell property

or, can ask for it in equity court

Question 18

rights of cotenants: possession

Answer 18

each entitled to possess the whole property. If denied opssession, can bring suit for damages and/or ejectment

Question 19

rights of cotenants: profits: from one co-T’s effort (+exception)

Answer 19

other co-Ts have no right to share in the profits

exception: they have been otsted, then entitled to a share of the profits

Question 20

outster

Answer 20

wrongful denial of entry onto the land

Question 21

right of cotenants: profits: if generated by what a 3rd party is doing w the property (rent)

Answer 21

all co-Ts are entitled to a proportionate share of that rent (in proportion to the ownership interest in the land)

Question 22

cotenants: tax + mortgage payments

Answer 22

each co-T must pay proportionate share

Question 23

cotenants: repairs

Answer 23

no duty to repair

but IF repairs AND receives 3rd party rent (or partion action) then can get a set-off

Question 24

cotenants; improvements

Answer 24

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