BAR FLASHCARDS - P2 Concurrent Estates

Question 1

CONCURRENT ESTATES (3 forms of concurrent Ownership)

Answer 1

An estate in land can be held concurrently by several persons, all of whom have the right to enjoyment and possession of the land.
There are three forms of concurrent ownership:
• The Joint Tenancy: Two or more own with the right of survivorship
• The Tenancy by the Entirety: A protected marital interest between spouses with the right of survivorship
• The Tenancy in Common: Two or more own without the right of survivorship

Question 2

The Joint Tenancy:

Answer 2

Two or more own with the right of survivorship.

Question 3

Joint Tenancy: Distinguishing Characteristics

Answer 3

a. *Right of Survivorship: A joint tenancy’s distinguishing feature is the right of survivorship. So when one joint tenant dies, what’s the result? Deceased JT’s share goes automatically to surviving JT.
b. Alienability: A joint tenant’s interest is alienable inter vivos. What does that mean? JT can transfer it during holder’s lifetime. (Alienate = sell or transfer)
c. *Not Descendible or Devisable: A joint tenant’s interest is neither devisable (passing by will) nor descendible (passing by intestacy).
Why not? Since a deceased joint tenant’s property passes to the surviving joint tenant(s) by operation of law, there isn’t any property interest remaining that a decedent’s beneficiary may inherit. So, joint tenancy property doesn’t become part of the deceased joint tenant’s estate, and an executor or administrator has no interest in the property. This survivorship characteristic also means a joint tenant’s attempt to dispose of the property by will is void.

Question 4

Joint Tenancy: How to create

Answer 4

a. The Four Unities - The common law requires four unities, which you can remember with “T-TIP”: Joint tenants must take their interests:
• T: at the same time;
• T: by the same title (meaning, in the same deed, will, or other document of title);
• I: with identical, equal interests; and
• P: with rights to possess the whole

AKA: the interests of joint tenants must be equal in every way. They must take identical interests, at the same time, by the same instrument, with the same right to possession. Thus, all interests in a joint tenancy must be equal shares. If there are three joint tenants, they each own an undivided one-third interest.

Clear Expression of Right of Survivorship: In addition to the four unities, to create a joint tenancy the grantor must clearly express the right of survivorship. For example, “To A and B as joint tenants with the right of survivorship.” Otherwise, a conveyance to two or more persons, without more, is presumed to be a tenancy in common.

Question 5

T-TIP

Answer 5

a. The Four Unities - The common law requires four unities, which you can remember with “T-TIP”: Joint tenants must take their interests:
• T: at the same time;
• T: by the same title (meaning, in the same deed, will, or other document of title);
• I: with identical, equal interests; and
• P: with rights to possess the whole

Question 6

if in a question the bar examiners identify the parties as joint tenants, take it as given that…

Answer 6

if in a question the bar examiners identify the parties as joint tenants, take it as given that they are joint tenants with the right of survivorship

Question 7

Each JT owns….

Answer 7

An equal share, and a RIGHT to use the WHOLE.

Question 8

Severance of a Joint Tenancy: Severance and SALE

Answer 8

Under certain circumstances, a joint tenancy will be severed (meaning, terminated) and a tenancy in common results.
Remember SAP for these circumstances: Sale And Partition.
Sale: JT sells/transfers during lifetime.
Severance and Sale: A joint tenant may sell or transfer her interest during her lifetime. A voluntary conveyance by a joint tenant of their interest destroys the joint tenancy. The transferee takes as a tenant in common.

May a joint tenant transfer his interest secretly? Yes, Can even be secret- without other’s knwoeldge or consent.

One joint tenant’s sale severs the joint tenancy as to the seller’s interest. Why? Because it severs the four unities.
Thus, the buyer is a TENANT in COMMON.

If we started with more than two joint tenants in the first place, remember, the joint tenancy remains intact as between the other, non-transferring joint tenants

Question 9

May a joint tenant transfer his interest secretly?

Answer 9

May a joint tenant transfer his interest secretly? Yes, Can even be secret- without other’s knwoeldge or consent.

Question 10

One joint tenant’s sale - effect on the JT?
What is the buyer?

Answer 10

One joint tenant’s sale severs the joint tenancy as to the seller’s interest. Why? Because it severs the four unities.
Thus, the buyer is a TENANT in COMMON.

Question 11

If we started with more than two joint tenants in the first place, then after a sale…

Answer 11

If we started with more than two joint tenants in the first place, remember, the joint tenancy remains intact as between the other, non-transferring joint tenants

Question 12

Severance of a Joint Tenancy: Severance and Partition (3 types of partition)

Answer 12

Parittion:
There are 3 types of partition:
• By voluntary agreement: An allowable and peaceful way to end the relationship. Amicable end.
• By judicial action called partition in kind: An action for a physical division of the property, if in the best interests of all parties. When would a partition in kind work best? When Acre is sprawling acreage like a farm or vineyard, that lends itself readily to a physical division amongs co-owners.
• By judicial action called a forced sale: An action when, in the best interests of all parties, the land is sold and the sale proceeds are divided up proportionately. When would a forced sale work best? When Acre is a single building that doesn’t lend itself to a physical division (acromony among co-owners).

Question 13

Severance of a Joint Tenancy: Transactions that Will Not Result in Severance

Answer 13

Transactions that Will Not Result in Severance
Mortgages: JT’s execution of Mortgage will NOT sever JT in vast majority of states.

Majority (LIEN theory) - NO Severance: In most states, a mortgage is a lien on title and does not sever a joint tenancy. Most states follow LIEN theory - all bank has is a LIEN on that portion, and the encurmbrance by lien is NOT enough to sever JT. Severance occurs only if the mortgage is foreclosed and the property is sold.
Minority (Title theory) - Severance: The execution of a mortgage in TITLE theory states, however, does sever a joint tenancy as to that encumbered share (because, under this minority view, giving a creditor a lien on one’s share is the equivalent of transferring title to that creditor).

Effect of One Joint Tenant’s Murdering Another: Under the Uniform Probate Code and modern statutes, when a beneficiary unlawfully and intentionally kills a joint tenant, any joint property is transformed into a tenancy in common.

Question 14

Severance of a Joint Tenancy: Testamentary Disposition

Answer 14

Testamentary Disposition Has No Effect: A will is ineffective to work a severance because at death the testa- tor’s interest vanishes.

Question 15

The Tenancy by the Entirety:

Answer 15

A protected marital interest between spouses with the right of survivorship.
Between MARRIED partners ONLY. (Not engaged).
A tenancy by the entirety is a marital estate akin to a joint tenancy.
It can be created only between married partners, who take as a fictitious “one person” with the right of survivorship.

Question 16

The Tenancy by the Entirety: How Created

Answer 16

In states that recognize the tenancy by the entirety, it arises presumptively in any conveyance to married partners unless the language of the grant clearly indicates otherwise.

Question 17

The Tenancy by the Entirety: PROTECTIONS it provides

Answer 17

Protected Form of Co-Ownership
The tenancy by the entirety is a very protected form of co-ownership. Remember it with the phrase: “Can’t touch this.”
a. Creditors: Creditors of only one spouse cannot touch this tenancy for satisfac- tion of the debt.
b. Unilateral Conveyance or Encumbrance: One spouse, acting alone, cannot defeat the right of survivorship by unilaterally conveying to a third party.
An individual spouse also cannot encumber tenancy by the entirety property and a deed or mortgage executed by only one spouse is ineffective.

Question 18

The Tenancy by the Entirety: CREDITORS?

Answer 18

a. Creditors: Creditors of only one spouse cannot touch this tenancy for satisfac- tion of the debt.

Question 19

The Tenancy by the Entirety: UNILATERAL CONVEYANCE OR ENCUMBRANCE?

Answer 19

b. Unilateral Conveyance or Encumbrance: One spouse, acting alone, cannot defeat the right of survivorship by unilaterally conveying to a third party.
An individual spouse also cannot encumber tenancy by the entirety property and a deed or mortgage executed by only one spouse is ineffective.

Question 20

The Tenancy by the Entirety: Severance

Answer 20

ONLY death, divorce, mutual agreement, or execution by a joint creditor of both the spouses can sever a tenancy by the entirety.
On divorce, the tenancy by the entirety becomes a tenancy in common.
- Divorce
- Death
- Execution of a lien by a JOINT creditor of BOTH spouses

Question 21

What happens to a Tenancy by the Entitrety in a DIVORCE?

Answer 21

The Tenancy by the Entirety becomes a Tenancy in Common

Question 22

The Tenancy in Common:

Answer 22

Two or more own without the right of survivorship.
A tenancy in common is a concurrent estate with no right of survivorship.
Today, multiple grantees are presumed to take as tenants in common, not as joint tenants.
Remember these two features of the tenancy in common:
• Each co-tenant owns an individual part, and each has a right to possess the whole
• Each interest is devisable, descendible, and alienable. Why?

Question 23

Tenancy in Common: Ownership and possession rights

Answer 23

• Each co-tenant owns an individual part, and each has a right to possess the whole

Question 24

Tenancy in common: Can they transfer?

Answer 24

• Each interest is devisable, descendible, and alienable. Why? No survivor rights to the Tenants in Common.

Question 25

The Tenancy in Common: Are they equal shares?

Answer 25

In a tenancy in common, by contrast, equal shares are presumed, but are not required. For example, in a tenancy in common held by three parties, one tenant may own a two-thirds undivided interest while each of the other two tenants holds an undivided one-sixth share.

Question 26

Multiple grantees are presumed to take as….

Answer 26

Today, multiple grantees are presumed to take as tenants in common, not as joint tenants.

Question 27

Rights and Duties of Co-Tenants

Answer 27

a. Possession
b. Rents and Profits
- From Co-Tenant in Exclusive Possession
- From Third Parties
c. Adverse Possession
d. Carrying Costs
e. Repairs
f. Improvements
g. Waste
h. Partition

Question 28

Rights and Duties of Co-Tenants: POSSESSION

Answer 28

• No outster (wrongful exclusion from part/whole).
  Each co-tenant has the right to possess all portions of the property but has no right to exclusive possession of any part.
  If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, they’ve committed ouster.
  Ouster is an actionable wrong

Question 29

Rights and Duties of Co-Tenants: Rents and Profits:
A. From Co-Tenant in Exclusive Possession
B. From Third-parties

Answer 29

From Co-Tenant in Exclusive Possession: NONE from co-tenant in exclusive possession (UNLESS ouster)
In most states, a co-tenant in exclusive possession has the right to retain profits from their use of the property; that is, they don’t need to share profits with other co tenants absent ouster or an agreement to the contrary.
From Third Party: Fair share if leased to third party.
A co-tenant who leases all or part of the premises to a third party must account to their co-tenants, providing them their fair share of the rental income.
In our hypo, what are the parties’ respective fair shares of the rental income? Respective to their ownership percentage.
Note: Co-tenants in exclusive possession must also share net profits gained from exploitations of the land, such as mining.

Question 30

Adverse Posssession by Co-tenants

Answer 30

NOT unless OUSTER.
Unless they’ve ousted the other co-tenant, the co-tenant in exclu- sive possession for the statutory adverse possession period cannot acquire title to the whole to the exclusion of the other co-tenant.

Question 31

Carrying Costs by Co-tenants

Answer 31

Each pays fair share.

Question 32

Repairs by co-tenants

Answer 32

Contributions for reasonable, necessary repairs with notice. Repsective to their % share.

Question 33

Unilateral improvements by co-tenants

Answer 33

No contribution in general for unilateral improvements.
But at partition, Improver gets credit at partition equal to any value increase he caused).
But at partition, the “improver” who decreased the value of the land will suffer a debit for the value he decreased.

Question 34

Waste by co-tenants

Answer 34

A co-tenant must not commit waste.
During the life of the co-tenancy, a co-tenant is permitted to bring an action for waste against another co-tenant.
There are 3 types of waste:
• Voluntary waste is willful destruction
• Permissive waste is neglect
• Ameliorative waste is unilateral change that increases value

Question 35

Can one co-tenant sue for ameliorative waste?

Answer 35

YES. For the sentimental value. Ameliorative waste is compensable.

Question 36

Partition.

kinds of partition?

Answer 36

A joint tenant or tenant in common has a right to bring an action for partition.
Recall the three types of partition: voluntary agreement, partition in kind, and forced sale.
Courts prefer partition in kind BUT will permit partition by sale when a fair and equitable physical division of the property cannot be made.
Although generally this right may be exercised at any time, restraints on partition by co-tenants are valid, provided they are limited to a reasonable time.

Question 37

Courts will permit partition by sale when…..

Answer 37

Courts prefer partition in kind but will permit partition by sale when a fair and equitable physical division of the property cannot be made.

Question 38

Restraints on partition by co-tenants

Answer 38

restraints on partition by co-tenants are valid, provided they are limited to a reasonable time.

Question 39

Effect of One Concurrent Owner’s Encumbering the Property

Answer 39

A joint tenant or tenant in common may encumber her interest (for example, by mortgage or judgment lien), but may not encumber the interests of other co-tenants. If, for example, one tenant in common mortgages her interest, the mortgagee can foreclose only on the mortgaging co-tenant’s interest. If a joint tenancy is involved, a mortgage (in a lien theory state) or lien does not sever the joint tenancy, but a foreclosure sale will. Note, however, that in the case of a joint tenancy, a mortgagee or lienor runs the risk that the obligated co-tenant will die before foreclosure, extinguishing the mortgagee’s or lienor’s interest.

Question 40

Duty of Fair Dealing

Answer 40

A confidential relationship exists among co-tenants; for example, one co-tenant’s acquisition of an outstanding title or lien that may affect the estate is deemed to be on behalf of other co-tenants. This is also why it’s difficult for one co-tenant to adversely possess against other co-tenants.

Question 41

Types of Tenancy: 3

Answer 41

Joint tenancy, Tenancy by the Entirety, Tenancy in Common.

Question 42

Joint Tenancy: Definition, Creation, Termination

Answer 42

Def: Each tenant has an undivided interest in the whole estate, and the surviving co-tenant has a right to the whole estate (right of survivorship).

Creation: “To A and B as joint tenants with the right of survivorship.” (Without survivorship language, it may be construed as a tenancy in common.) Joint tenants
must take:
(i) identical interests;
(ii) from the same instrument;
(iii) at the same time;
(iv) with an equal right to possess (the four unities).

Termination: The right of survivorship may be severed, and the estate converted to a tenancy in common, by: a conveyance by one joint tenant, agreement of joint tenants, murder of one co-tenant by another, or simultaneous deaths of co-tenants. A joint tenancy can be terminated by partition (voluntary or involuntary).

Question 43

Tenancy by the Entirety: Definition, Creation, Termination

Answer 43

Definition: Each spouse has an undivided interest in the whole estate and a right of survivorship

Creation: “To A and B” (when A and B are married). Some states presume a tenancy by the entirety in any joint conveyance to two spouses where the four unities (above) are present.

Termination: The right of survivorship may be severed by death, divorce, mutual agreement, or execution by a joint creditor. Tenancy by the entirety cannot be terminated by involuntary partition.

Question 44

Tenancy in Common: Definition, Creation, Termination

Answer 44

Definition: Each tenant has a distinct, proportionate, undivided interest in the property. There is no right of survivorship.

Creation: “To A and B” or, sometimes, “To A and B as joint tenants.” Only unity required is possession.

Termination: May be terminated by partition.