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Property > Co-Ownership > Flashcards

Co-Ownership Flashcards

1
Q

What is the general idea of co-ownership?

A

Co-ownership of property involves concurent possessory rights to be held by two or more persons, either presently or in the future, and confers a concurrent right to the co-owners to possess and use the property as a whole.

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2
Q

Name the three types of co-ownership

A
  1. Tenancy in common
  2. Joint tenancy
  3. Tenancy by the entirety
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3
Q

Which type of co-ownership is the default?

A

Tenancy in common is preferred by the courts and the default form of co-ownership if someone messes something up.

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4
Q

What language creates a tenancy in common? (2)

A
  • O to A and B as tenants in common
  • O to A and B
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5
Q

What language creates a joint tenancy? (3)

A
  • O to A and B as joint tenants and not as tenants in common
  • O to A and B jointly
  • O to A and B as joint tenants with the right of survivorship
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6
Q

How are is tenancy by the entirety created?

A

Only between married persons

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7
Q

Does tenancy in common have right of survivorship? What happens if someone dies?

A

Ni. If A dies, B keeps B’s hald, and A’s half goes to A’s heirs/estate.

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8
Q

Does joint tenancy have right of survivorship? What happens if someone dies?

A

Yes. If A dies testate or intestate, B owns the property outright.

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9
Q

Does tenancy by the entirety have right of survivorship?

A

Yes, the property goes to the surviving spouse.

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10
Q

What interests do the owners have in tenancy in common?

A

Separate but undivided in the whole property

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11
Q

What interests do the owners have in joint tenancy?

A

Separate but undivided in the whole property

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12
Q

What interests do the owners have in a tenancy by the entirety?

A

Both spouses are considered to hold as one person

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13
Q

How can tenancy in common be conveyed?

A

Can be conveyed by deed, will, or intestate succession. If A and B are tenants in common, and A to C, then C and B are tenants in common. If B dies intestate, then C and B’s heirs hold as tenants in common.

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14
Q

How can a joint tenancy not be conveyed?

A

Cannot be conveyed by will or intestate succession. The right of survivorship must first be severed.

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15
Q

Can a joint tenancy be conveyed unilaterally? (without the knowledge or action of the co-owner)

A

Yes, but the new owner and original co-owner now become tenants in common.

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16
Q

How is a tenancy by the entirety conveyed?

A

Conveyances are only allowed when both spouses are involved (no unilateral conveyances)

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17
Q

What happens to a tenancy by the entirety if the spouses divorce?

A

The tenancy by the entirety is destroyed, and the parties become tenants in common.

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18
Q

Is partition available for tenants in common?

A

Yes

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19
Q

Is partition available for joint tenancy?

A

Yes

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20
Q

Is partition available for tenancy by the entirety?

A

No

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21
Q

Why does a joint tenancy avoid probate? Does this have an effect on taxation?

A

Because no interest passes on through the joint tenant’s death. But still subject to federal estate taxation.

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22
Q

Can creditors access a joint tenancy?

A

If a creditor acts during a joint tenant’s lifetime, they can sever the joint tenancy by seizing and selling the joint tenant’s interest in property, but, if the creditor waits until death, the decedent joint tenant’s interest has disappeared and there is nothign the creditor can seize.

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23
Q

Which one wins: right of survivorship or a will?

A

Right of survivorship trumps a will.

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24
Q

What are the four unities? (Purpose, not listing them)

A

The four unities are required to be simultaneously present at the creation of and for the duration of a joint tenancy.

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25
Q

List the four unities required for joint tenancy.

A
  1. Time
  2. Title
  3. Interest
  4. Possession
26
Q

Regarding the four unities, what is time?

A

The interest of each joint tenant must be acquired or vest at the same time.

27
Q

Regarding the four unities, what is title?

A

All joint tenants must acquire title by the same instrument or by a joint adverse possession. A joint tenancy can never arise in intestate succession and very infrequently by other act of law.

28
Q

Regarding the four unities, what is interest?

A

All must have equal udivided shares and identical interests measured by duration.

29
Q

Regarding the four unities, what is possession?

A

Each must have a right to possession of the whole. After the joint tenancy is created, one joint tenant can voluntarily give exclusive possession to the other.

30
Q

What happens when a joint tenancy or a tenancy by the entirey is severed?

A

It becomes a tenancy in common

31
Q

Generally, how is a joint tenancy severed?

A

By the destruction of one of the four unities

32
Q

What are some examples of ways a joint tenancy is severed? (6)

A
  • Mutual agreement
  • By one JT conveying its interest to a 3d party (destroys unities of time and title)
  • Death of JT (destroys that JT’s interest)
  • Partition
  • JT conveys interest to self as tenant in common
  • JT mortgages its half of property (only in title theory state)
33
Q

What are two examples of actions that do not sever a joint tenancy?

A
  • Leasing a property
  • One JT signs agreement with other JT that other gets rentals from and possession of land for life
34
Q

What if joint tenants die in a common disaster?

A

Where A and B, joint tenants, die in a common disaster with no sufficient evidence of who died first, Uniform Simultaneous Death Act says that half of the estate passes as if A survived B and half as if B survived A.

35
Q

What happens if a joint tenant murders another joint tenant?

A

If A and B are joint tenants, and A murders B, the Uniform Probate Code says that the murder severs the joint tenancy and converts it to a tenancy in common. The murderer gets its hald and the decedent’s share goes to his/her estate.

36
Q

What is required to create a tenancy by the entirety?

A

The four unities of joint tenancy, plus a fifth unity, marriage.

37
Q

In majority jurisdictions, when must a marriage happen to form tenancy by the entirety?

A

Prior to the conveyance

38
Q

Do tenants by the entirety have rights of conveyance or partition?

A

A tenant by the entirety cannot unilaterally convey its interest, nor is there a right to partition.

39
Q

How is a tenancy by the entirety destroyed?

A

Only through divorce or joint conveyance

40
Q

Generally, what is partition?

A

If co-tenants cannot agree on division of property, one may file an action for partition.

41
Q

What are the two types of partition?

A
  1. Partition in kind
  2. Partition by sale
42
Q

What is partition in kind?

A

The court physically divides the property. The court determines the share of the total property to which each co-tenant is entitled and awards the portions of the property in accordance.

43
Q

In partition in kind, what presumption is made as to the amount of land each co-tenant is entitled to?

A

In the absence of evidence to the contrary, presumption is requeal, undivided shares. 50/50.

44
Q

In partition in kind, what happens if after division there is still inequality?

A

If, after physical division, there remains an inequality in the value of the parcels allocated to the former co-tenants, this may be corrected by the payment, by the party having the excess share, of owelty: a money payment to make values equal.

45
Q

What is partition by sale?

A

A sale of the property is conducted under supervision of the court. The expenses of the sale are paid. The net proceeds of the sale are then distributed to the parties according to their respective interests.

46
Q

Do co-tenants own rent to each other?

A

A co-tenant in exclusive possession does not owe rent to his co-tenants, absent an agreement to pay rent or ouster.

47
Q

What is ouster?

A

When a co-tenant denies access to the whole of a property to a co-tenant

48
Q

What damages are available for an action in ouster?

A

If ousted, a plaintiff can recover half of the reasonable rental value of the leased land.

49
Q

What happens if a joint tenant enters a lease without co-tenant?

A

The lease does not sever the joint tenancy. A joint tenant who has not joined in the leases executed by her co-tenant are another cannot maintain an action to cancel the leases where the lessee is in exclusive possession of the leased property.

50
Q

What action does a joint tenant have against a co-tenant who entered a lease alone?

A

A joint tenant can sue for accounting of rents actually paid (not the reasonable rental value) to the co-tenant because she is entitled to half.

51
Q

What are the costs of concurrently owned property? (3)

A
  1. Taxes and mortgage payments
  2. Maintenance and repairs
  3. Improvements
52
Q

What are the benefits of concurrently owned property?

A
  1. Rents realized from leases to third parties
  2. Profits realized from using the property for business purposes
  3. Value realized by one or more of the co-tenants occupying the property as a residence
53
Q

What are the obligations among co-tenants regarding rents and profits?

A

In all states, a co-tenant who collects rents and other payments (arising from the co-owned property) from third parties must account to co-tenants for the amounts received. Absent ouster, the accounting is usually based only on actual receipts, not fair market value.

54
Q

What are the obligations among co-tenants regarding taxes and mortgage payments?

A

A co-tenant paying more than his/her share of the taxes, mortgage payments, etc., generally has a right to contribution from the other co-tenant(s), at least up to the amount of the value of their share in the property.

55
Q

What is an exception to the obligations among co-tenants regarding taxes and mortgage payments?

A

If the tenant who has paid the taxes or interest has been in the sole possession of the property, and the value of the use and enjoyment which he has had equals or exceeds such payments, no action in any form for contribution will lie against the others.

Exception not uniformly applied.

56
Q

What is the obligation among co-tenants regarding repairs?

A

Regarding necessary repairs, in most jurisdictions, a co-tenant making or paying for them has no affirmative right to contribution from the other co-tenants in the absense of an agreement. But the paying co-tenant receives a credit for reasonable repairs in a partition or accounting action (subject to the same taxes and mortgage exception).

57
Q

When has an obligation for contribution been found between co-tenants regarding repairs?

A

Where a co-tenant has been required to clean up environmental waste or hazards.

58
Q

What are the obligations among co-tenants regarding improvements?

A

Regarding improvements, a co-tenant making or paying for them has no affirmative right to contribution from the other co-tenants. Unlike the rule regarding repairs, a co-tenant paying for improvements gets no credit for the cost of improvements in an accounting or partition action. However, the general rule is that the interests of the improver are to be protected if this can be accomplished without detriment to the interests of the other co-tenants.

59
Q

How are improvements assessed in determining whether the improver should see any money benefit?

A

Where improvements cost more than they yield, the improver bears the full downside risk. Where the improvements increase the value byonf their cost, the improver gets the total increase in value.

60
Q

Can the creditor of one spouse reach a property held as tenants by the entirety?

A

The interest of a husband or wife in an estate by the entireties is not subjec to the claims of his or her individual creditors during the joint lives of the spouses. Creditors can only reach property that is voluntarily assigned, and a spouse in tenancy by the entirey cannot unilaterally assign his or her interest.

This does not apply if the creditor is the United States government.

Property (13 decks)

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