4. Concurrent Estates

Question 1

There are three forms of concurrent ownership:

Answer 1

1. The joint tenancy
2. The tenancy by the entirety
3. The tenancy in common

Question 2

The joint tenancy:

Answer 2

Two or more own, with the right of survivorship

Question 3

The tenancy by the entirety:

Answer 3

A marital interest between married partners, with the right of survivorship.

Question 4

The tenancy in common:

Answer 4

Two or more own, with no right of survivorship.

Question 5

Two distinguishing characteristics of a joint tenancy

Answer 5

1. The rate of survivorship - When one joint tenant dies, his share goes automatically to the surviving joint tenant.
2. A joint tenant’s interest is alienable. It is not devisable or descendable, because of the rate of survivorship.

Question 6

The four unities required for the creation of a joint tenancy:

Answer 6

Joint tenants must take their interests: (T-TIP)

1. At the same Time
2. By the same Title (in the same instrument)
3. With Identical shares
4. The right to Possess the whole

Question 7

In a edition to the four unities required for creating a joint tenancy, what else must be present?

Answer 7

Grantor must clearly express the right of survivorship.

Question 8

Is a straw required in NY for a grantor to create a joint tenancy with another?

Answer 8

No

Question 9

One joint tenant’s sale severs the joint tenancy as to the seller’s interest because it:

Answer 9

disrupts the four unities, therefore the buyer becomes a tenant in common

Question 10

In equity, a joint tenant’s mere act of entering into a contract for the sale of her share will:

Answer 10

sever the joint tenancy as to the contracting party’s interest

Question 11

Three ways of severance or partition of a joint tenancy:

Answer 11

1. By voluntary agreement
2. Partition in kind - A court action for physical division of Blackacre if in the best interest of all. (Ex. Blackacre is rural, so it makes sense to split it up)
3. Forced sale - A court action, if in the best interests of all where Blackacre is sold and the sale proceeds divided proportionally. (Ex. Blackacre is a building)

Question 12

The lien theory of mortgages (Majority including NY)

Answer 12

A joint tenant’s execution

of a mortgage on his or her interest will not sever the joint tenancy.

Question 13

How is a tenancy by the entirety created?

Answer 13

Only created between married partners who share the right of survivorship.

Question 14

Can creditors of one member of a tenancy by the entirety touch the entirety?

Answer 14

No.

In New York, one spouse may mortgage his interest and his creditors may enforce against that interest, but only as to the debtor spouse’s share. Further, the non-debtor spouse’s rights, including the right of survivorship, must not be compromised.

Question 15

In a tenancy by the entirety, an either tenant, acting alone, defeat the right of survivorship by a unilateral conveyance to a third party?

Answer 15

No

Question 16

Three features of a tenancy in common

Answer 16

1. Each co-tenant owns an individual part, and each has a right to possess the whole.
2. Each interest is devisable, descendable, and alienable. There are no survivorship rights between tenants in common.
3. The presumption favors the tenancy in common

Question 17

If one co-tenant wrongfully excludes another co-tenant from possession of
the whole or any part, he has committed

Answer 17

Wrongful ouster

Question 18

Regarding rent, absent ouster, a co-tenant in exclusive possession:

Answer 18

Is not liable to the others for rent

Question 19

A co-tenant who leases all or part of the premises to a third party must:

Answer 19

Account to his co-tenants, providing their fair share of the rent income

Question 20

Unless he has ousted the other co-tenants, one co-tenant in exclusive possession for the statutory adverse possession period:

Answer 20

Cannot acquire title, to the exclusion of the others.

The hostility element of adverse possession is
absent. There is no hostility because there was never any ouster.

Question 21

How are carrying costs (such as taxes, and mortgage interest payments) paid by co-tenants?

Answer 21

Each co-tenant is responsible for his or her fair share of carrying costs, based upon his undivided share.

Question 22

How are repairs paid for by co-tenants?

Answer 22

The repairing co-tenant enjoys: a right to contribution for reasonable, necessary, repairs, provided that she has told the others of the need.

Question 23

Can a single co-tenant claim contribution for improvements made to the estate?

Answer 23

No. During the life of the co-tenancy, there is no right to contribution for improvements.

Question 24

Can a co-tenant commit waste?

Answer 24

No