Ch. 6 "Concurrent ownership & marital Property" Flashcards
Concurrent ownership
Each co-owner or cotenant has the right to use and possess the entire property
Modern concurrent estates
Tenancy in common “of O conveys land to A and B”
Each tenant in common has undivided, fractional interest in the property
1) Has right to transfer their interest to someone
2) Freely Alienable
3) Devisable
4) Descendible
5) Right to use and posses the whole parcel (even if his fractional interest is smaller then others)
Joint tenancy “O conveys Greenacre “to A and B as joint tenants with right of survivorship:
- Undivided right to use and possess the whole property
- Survivorship, if A dies then B has A interest
Common LAW needs:
1) Must acquire at the same TIME
2) Must acquire TITLE by the same instrument
3) Must have the same shares in the estate, equal in size and duration
4) Must have an equal right to possess, use, and enjoy the whole property
- transferred joint tenancy is severed
- but B transfers to D, D no longer joint, thus if he dies it goes to his heirs but if A dies it goes to C”
○ Tenancy by entirety(Husband and wife) “o conveys Greenancre to A and B as tenants by the entirety” can only end by a death, devorce, or the agreement of both spouses
James v. Taylor
Purpose: Modern Concurrent estates
Facts: Tayor’s mother conveyed a property to her three children “jointly and severally and unto their heirs”
Issue: If an instrument of conveyance does not show an intent to create a right to survivorship, can the instrument create a joint tenancy.
Holding: NO. Instrument of conveyance does not show an intent to create a right of survivorship. Phrase “jointly and severally” was ambiguous
Takeaway: Modern tend to focus on grantor’s actual intent and less on formulaic language and modern grantors tend to intend to transfer a tenancy in common
Tenhet v. Boswell
Purpose: Whether execution of a lease by one joint tenant severs the joint tenancy and Common law
Issue: Severance. DOes a lease sever a joint tenancy
Holding: The lease to Boswell did not sever the joint tenancy, but when Johnson died his interest in the land vested to Tenhet, thus extinguished the lease
Takeaway: Individuals leases land from only one join tenant, the lease ends at :
1) the death of the lessor; OR
2) End of the leasehold term
Concurrent ownership (Common law)
Favored joint tenancies over tenancies in common
-if an instrument property to two or more persons was ambiguous, a joint tenancy resulted.
Concurrent ownership (Modern day)
Presumption of favoring joint tenancies has been abolished in all states
- Modern law favors tenancy in common (default concurrent estate)
- Abolition has been accomplished by statute providing that a grant or devise to 2 or more persons create a tenancy in common
Tenants in common
Concept:
-Separate but undivided interest (do NOT have to own equal shares)
-Each tenant in common owns an undivided share of the whole
-co-tenants only share the right to posession
NOTE: Partnerships invovle co-ownership of partnership assets
Freely transferable:
-each interest is freely descendible, devisable and alienable (the interest of each can be conveyed by deed or will)
Ex: T devises Blackacre to A and B. This means A and B are tenants in common
- iof A conveys his interest to C, then B and C are tenants in common
- if B dies intestate, B’s heirs is tenant in common with C
Joint tenants with right of survivorship
A simple mechanism for transferring property to a co-owner at death. Same rights as tenant in common
4 conditions must concurrently exist when joint tenants take their interests:
(PITT)
POSSESSION= Each must have the right to possession of the whole
INTEREST=all must have equal undivided shares and identical interest measured by duration
TIME: The time of each joint tenant must be acquired at the same time
TITLE: All joint tenants must acquire title by the same instrument or by a joint AP
Why have joint tenants:
- SImple estate planning tool. Allows 2 or more person with reciprocal estate plans to grant an interest in land to the other without the necessity of a will and probate proceddings
- tool for passing proeprty at death if intent is for the other co-owner to get dying co-owners share
Hypos for joint tenants:
“ to A & B as joint tenants with right of survivorship”
“what if B then conveys his interest to C?”
“40% to A and 60% to B as joint tenants with right of survivorship”
1) A and B have a joint tenancy with right of surviroship
2) A and C have a tenancy in common. Breask the PITT. NO intent that A and C has as their estate plans that the other takes upon death
3) Tenancy in common
Ark land co. Harper
Purpose: Example of the conflicts often arise between cotenants and a solution
Facts: A family owned a land for 100 years and Ark wanted to ourcahse the reaminder of their property and filed to parition the land
Issue: Is the economic value of property the decisive factor in determining whether to partition in kind or by sale?
Rule; Economic value of property is not a decisive factor in determining a partition in kind or by sale
Holding: NO. The land has sentimental value(100 years0
Partition
An equitable action to resolve irreconcilable conflicts with regard to use, accounting, and contribution where the parties cannot agree to a market-based sale.
- An absolute right. A way of resolving conflicts with respect to use, accounting, and contribution.
- A partition judgment ends the cotenancy and distributes its assets.
- A co-tenant can force a partition and take sole ownership of her/his share in the estate while the remaining parties hold their interests as tenants in common.
Esteves v. Esteves
Purpose: Contents rights and offsetting credits
Facts: A son and parents bought a house together equally, son made repairs and parents lived in the house
Takeaway: Coteents equally share the benefits and value
Outster
Is A liable when A occupies Greenacre and prevents her cotenant B from suing it
-YES. A is liable. A must pay B the prorata rate
Shsring rents and profits
Each co tenant is entitled to her proportionate share of all rents and profits derived from the land
Sawada v. Endo
Purpose: Tenancy by the entirety
Issue: Is the interest of one spouse in a tenancy by the entirety subject to the claims of the spouse’s individual creditors?
Rule: The interest of a husband or wife in a tenancy by the tirety is not subject to the claims of his or her individual creditors during the joint lives of the spouses.
Analysis: NO.
