Chapter 6: Concurrent Ownership

Question 1

Elements of the tenancy in common

Answer 1

1. Created by “to A and B”
2. Freely alienable, devisable, and descendible
3. Each has a right to possess the whole parcel
4. Proceeds are divided proportionately by interest each party possesses

Question 2

Elements of the joint tenancy

Answer 2

1. Created by “to A and B as joint tenants with right of surviorship”
   
   • If A dies, B becomes sole owner w/ 100% interest
2. Neither devisable nor descendible
3. Each has the right to possess the whole parcel

Question 3

Elements to create the joint tenancy

Answer 3

1. Time - all tenants must acquire property at same time
2. Title - all tenants must acquire title by same instrument
3. Interest - all tenants must have same shares in both size and duration
4. Possession - all tenants must have equal right to possess, use, and enjoy whole property

Question 4

Elements of the tenancy by entirey (split jx - only half of states)

Answer 4

1. Created by “to A and B as tenants by the entirety” or be conveyance or devise to married couple
2. Each tenant has undivided right to use and possess the property
3. Neither party can individually convey undivided interest to 3d party
4. Only be ended by death, divorce, or the agreement by both spouses

Question 5

Elements to create tenancy by entirety

Answer 5

1. Time
2. Title
3. Interest
4. Possession
5. A valid marriage

Question 6

Define “partition”

Answer 6

When parties cannot agree on how to end a cotenancy, a tenant has the right to sue for partition

Question 7

Partition rule

Answer 7

If property cannot be fairly divided, the entire property may be sold
1. Property cannot be conveniently partitioned
2. Interests of one or more of parties will be promoted by sale
3. Interests of other parties will be prejudiced by sale

Question 8

What are the elements of the Uniform Partition of Heirs Property Act?

Answer 8

1. Allows any cotenant to purchase interest of a cotenant who seeks partition by sale
2. Requires partition in kind unless result would prejudice the cotenants in the group
3. Provides that in assessing prejudice, court must consider sentimental attachment
4. Mandates open market sale rather than customary auction

Question 9

Cotenant Rights and Duties

What is the rule for rent in cotenancy?

Answer 9

A cotenant in possession does not owe any rent to a cotenant out of possession, absent an ouster

Question 10

Cotenant Rights and Duties

What is an ouster?

Answer 10

An ouster occurs when a co-tenant in possession refuses to allow another cotenant to occupy the property

Question 11

Cotenant Rights and Duties

How are proceeds from the property dispersed?

Answer 11

A cotenant is entitled to his proportionate share of all rent and profits derived from the entire land

Question 12

Cotenant Rights and Duties

How are proceeds from the property dispersed?

Answer 12

A cotenant is entitled to his proportionate share of all rent and profits drive from the entire land

Question 13

Cotenant Rights and Duties

When can a co-tenant in sole possession recover operating and maintenance costs?

Answer 13

If the costs exceed it’s fair, rental value

Question 14

Separate Property System

What are the rights during marriage in a separate property system?

Answer 14

Property is separately owned by the spouse, who acquires it

Question 15

Separate Property System

What are the rights during divorce in a separate property system?

Answer 15

Most states mandate equitable distribution of property, considering factors, such as incomes, standard of living, contributions, age and health, special needs, and the length of the marriage

Question 16

Separate Property System

What are the rights at death in a separate property system?

Answer 16

The survivor has a choice:
1. take under the decedent’s will, or
2. receive a defined portion of the decedent’s estate

Question 17

Community Property System

What are the rights during marriage in a community property system?

Answer 17

All earnings during marriage are owned by both spouses equally. Property acquired before marriage or during marriage by gift or inheritance is separate property.

Question 18

Separate Property System

What are the rights at divorce in a community property system?

Answer 18

All community property is divided between the spouses

Question 19

Separate Property System

What are the rights at death in a community property system?

Answer 19

At death, the decedent may devise her half of the community property and all her separate property as she desires

Question 20

Tenancy by Entirety

What are the 4 approaches to debt in marriage?

Answer 20

1. The possession of the estate is subject to the husband’s, exclusive control;
2. The estate of a debtor spouse, except a homestead, shall be subject to his separate debts
3. The estate may not be subjected to the separate debts of one spouse only
4. The contingent right of survivorship is separately alienable and attachable by the individual’s credit

Question 21

Unmarried Couples

How do courts handle disputes in unmarried couples?

Answer 21

General refusal to recognize property rights, however, may take an approach of implied contract or unjust enrichment