Co- Ownership 2 Flashcards
Can only be created between married persons (spouses).
Tenancy by the Entirety
Tenancy by the Entirety:
The four unities are required (time, title, interest, and possession) plus a fifth,
the unity of marriage
Does the surviving spouse have a right of survivorship in a tenancy by the entirety?
YES, the surviving tenant has the right of survivorship.
Both spouses are considered to hold as one person at common law both are seized of the entirety. What does this refer to?
Tenancy by the Entirety
Neither spouse can defeat the right of survivorship by a conveyance to a third party- only a conveyance by both spouses can accomplish this.
What type of concurrent interest?
Tenancy by the Entirety
Neither spouse acting alone has the right to judicial partition of the property.
What type of concurrent interest?
Tenancy by the Entirety
___________ __________ the tenancy by the entirety because it ends the marriage (which is one of the five unities.) Typically, after a divorce, the parties become __________ ____ __________.
divorce terminates
Tenants in common
No unilateral conveyances in what type of concurrent interest?
Tenancy by the Entirety
Both spouses have to work together to convey in what type of concurrent interest?
Tenancy by the Entirety
If you get _________, you are likely to become a tenant in common unless divorce decree gives real property to one spouse or the other.
divorced
O –> A, B, and C as joint tenants. Later A —> D. Later B dies intestate, leaving H as his heir. What is the state of the title, or who gets what? What if B died leaving a will devising his property to H?
C has to 2/3 and D has 1/3 and they are tenants in common with each other.
T devises. Aqua acre “to A and B for their joint lives, remainder to the survivor. What interests are created by the devise? How do a joint tenancy and the above conveyance differ?
A and B have a joint life estate and the survivor has a contingent remainder.
A and B cannot unilaterally convey away their ownership rights in this conveyance. If they work together, they can do it. A or B will be the survivor and they can work together to convey away their rights but if it had simply said T conveys to A and B as joint tenants with right of survivorship A could see that and sell his interest to somebody else.
A and B are engaged. Two weeks before the wedding they buy a house and take title as “A and B as tenants by the entirety.” Several years after the marriage, A moves out and conveys her interest in the property to her brother C. C brings an action to partition the property. What’s the result?
Can someone who is a tenant by the entirety unilaterally sever by selling to someone else? No. Can they get a partition action? They cannot so it was okay for C to do what C did here.
They were not married so they had a tenancy in common – default form of co-ownership. Despite the fact that the deed says it is a tenancy by the entirety it is a tenancy in common and C is free to seek a partition action.
If you are the attorney who is asked to consult on this- what documents do you want to see? Deed and marriage license because you don’t want to read the deed that says tenancy by the entirety and believe that it is true. The deed could be wrong.
In some jurisdictions that are weird the fact that you do get married could reform this deed but not in most places but they way I just taught you is the way I want you to answer.
One joint tenant may ____________ terminate a joint tenancy without the use of an intermediary device.
unilaterally
Sneaky wife. She goes to an attorney and historically the typical method would be to convey it to someone else. The someone else is a
strawman.
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
½ of estate passes as if A survived B and ½ as if B survived 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 his/her 1/2 , but the decedent’s share goes to his/her estate.
For a joint tenant, mortgaging their interest in the property in a title theory state severs the joint tenancy.
A. True
B. False
A. True
Lien Theory of Mortgages says that the ______________ (__________) keeps legal title and the ___________(__________) has only a lien on the property.
Mortgagor (Borrower)
Mortgagee (Lender)
_________ _________ of ___________ says that the Mortgagor (Borrower) keeps legal title and the Mortgagee (Lender) has only a lien on the property.
Lien Theory of Mortgages
_________ __________ of _________- says that the Mortgagee takes title to the land and the Mortgagor retains only the equity of redemption.
Title Theory of Mortgages
Title Theory of Mortgages says that the ____________ takes title to the land and the ____________ retains only the equity of redemption.
Mortgagee
Mortgagor
A joint tenancy is not severed when one party mortgages their interest in a _______ ________ __________.
lien theory state
If the debtor joint tenant dies before the creditor collects the creditor is out of luck. True or False.
True
If the ______ ________ ________ dies before the creditor collect the creditor is out of luck.
debtor joint tenant
1.If the court had instead held that the mortgage severed the joint
tenancy, what effect would paying off the mortgage have had during
John’s lifetime?
Would paying off the mortgage have magically restored the right of survivorship between William and john?
NO that doesn’t work. Because to create a Joint Tenancy you need time, title, interest, and possession.
- What if William had died first, Sprague had not paid the note off,
and the Simmons foreclosed, would the whole property be subject
to the mortgage, or only a ½ interest in it?
William dies first. John owns the whole thing.
Classic Joint Tenancy – you have an undivided interest in the whole and now that they are the sole owner the whole thing gets encumbered.
3.A and B own Black acre in joint tenancy. A conveys a 10 year
term of years to C. After 5 years, A dies, devising all of his property
to D. What are B’s rights?
Think of this as a 10-year lease.
Assuming that the lease did not sever the joint tenancy When A dies devising the property to D. Who owns the property?
Now that B owns the whole thing what can B do to the tenant C?
The act of leasing it doesn’t sever it. The owner is getting it back at the end of the lease and they are just temporarily relinquishing possession. They are not transferring ownership
B owns the whole thing. Right of survivorship trumps the will.
they can kick them out.
If you are representing a tenant. It would be a good idea to find out how the property is owned. You don’t want your landlord to die, and the surviving joint tenant says I didn’t want you to lease it and kicks you off. True or False.
True
4.What if A and B sign a written agreement that says B gets the
rentals from and possession of the land for her life? Does the
agreement destroy the unity of possession? At A’s subsequent
death, who gets Black acre?
Can you do that after a joint tenancy has been created? Here they are not transferring ownership they are just saying that you can live there or collect rent from renting it out. Why would that happen?
You might say to your sibling I am busy in Knoxville so you tell your sibling to live there or rent it out so you can reap the benefit for now while I do this. That does not destroy the 4 unities. You are free as a joint tenant once it has been created properly to contract that way. Fairly common. Family members will leave you something where you are from, and you are not there anymore. When A dies B gets Black Acre because we didn’t do anything to sever the right of survivorship, we just made an agreement after the fact after the joint tenancy was created.
If co-tenants want to terminate their co-tenancy, and can agree on the division of their property, said termination can be accomplished through mutual agreement; but, if they cannot agree, they must file an action for _________.
Partition
_____________ is available to joint tenants and tenants in common, not tenants by the entirety.
Partition
Termination of tenancy by the entirety can only be accomplished through _________ or ___________.
joint conveyance or divorce.
Court physically divides the property.
Partition in kind
Court determines the share of the total property to which each co-tenant is entitled (in the absence of evidence to the contrary, presumption is equal undivided shares).
Partition in Kind
Court awards portions of the property to the parties in accordance with their interests.
Partition in Kind
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.”
Partition in Kind
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 ___________.
owlety
A sale of the property is conducted under the supervision of the Court.
Partition by Sale
The expenses of the sale are paid.
Partition by Sale
The net proceeds of sale are then distributed to the parties according to their respective interests.
Partition by Sale
Partition by Sale:
1.
2.
3.
- A sale of the property is conducted under the 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.
(1) A and B are heirs of their father. They both want Dad’s old rocking chair. A brings a partition action. What relief should the court award?
Father is deceased. Let’s say it is a food city rocking chair. It’s not fancy and selling it will not pay the legal fees for the partition action. What does the court do? Joint custody. 6 months with A. Six months with B and the one who lives longest gets the rocking chair.
(2) A and B own Blue acre as tenants in common. Each agrees in writing with the other never to bring an action to partition the land. A then brings a partition action. What result? What if instead the agreement provides for no partition until clouds on the title are resolved in a pending lawsuit? Same result?
Will A get the partition?
Why are they going to be able to get the partition action?
Now: never to let’s resolve the clouds. Does clearing up the title make it more alienable or less?
Yes. A will get the partition.
It sounds like a restraint on alienation. Restraints on alienation are bad and PP we don’t want to keep other people from buying and selling land. Even though A agreed not to do this, she can get it because prior agreement was ROA.
More. More easily bought and sold. Chances are the courts would uphold this one. It is limited in time as long as you are diligently pursuing the lawsuit. The purpose of the lawsuit is to make it easier to buy and sell the land.
What is ouster?
Denying access to the whole of the property where co-ownership exists.
The majority rule is that a co-tenant in exclusive possession does not owe rent to his co-tenants, absent an agreement to _____ _______ or ______.
pay rent or outser
Possession and occupancy of property held as tenants in common are consistent with a co-tenant’s rights of ownership. Protection of these rights encourages co-tenants to make _________ use of the property.
productive
A joint tenant who has not joined in the leases executed by her co-tenant and another cannot maintain an action to cancel the leases where the lessee is in exclusive possession of the leased property.
Does the lease sever the joint tenancy?
No. The lease does not sever the joint tenancy.
To promote productive use of jointly held property by one joint tenant without destroying the joint tenancy. The Court further encourages potential lessees to deal with both joint tenants. True or False.
True
Rents realized from leases to third parties;
Benefits of Concurrently Owned Property
Profits realized from using the property for business purposes;
Benefits of Concurrently Owned Property
Value realized by one or more of the co-tenants occupying the property as a residence.
Benefits of Concurrently Owned Property
Taxes and mortgage payments;
Costs of Concurrently Owned Property
Maintenance and repairs
Costs of Concurrently Owned Property
Improvements.
Costs of Concurrently Owned Property
Costs and Benefits of Concurrently Owned Property
Benefits:
* Rents realized from leases to third parties;
* Profits realized from using the property for business purposes;
* Value realized by one or more of the co-tenants occupying the property as a residence.
Costs:
* Taxes and mortgage payments;
* Maintenance and repairs;
* Improvements.
Co-Tenants making such expenditures might seek to recoup some of those expenses through partition actions, actions for an accounting or an action for contribution.
True or False.
True
Obligations Among Co-Tenants
Rents and Profits:
*In all states, a co-tenant who collects rents and other payments (arising from the co-owned property) from third parties must ________ to co-tenants for the amounts received.
*Absent _______ , the accounting is usually based only on actual receipts, not fair market value.
account
outser
A cotenant paying more than his/her share of the taxes, mortgage payments, etc., generally has a right to ____________ from the other co-tenants, at least up to the amount of the value of their share in the property.
contribution
Taxes and Mortgage Payments:
* A cotenant paying more than his/her share of the taxes, mortgage payments, etc., generally has a right to contribution from the other co-tenants, at least up to the amount of the value of their share in the property.
* However, 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 _____________ will lie against the others. This exception to the rule is not uniformly applied.
contribution
Right that gives one person liable on a common debt the right to recover from people to pay their part.
Contribution
Regarding necessary repairs, in most jurisdictions, a co-tenant making or paying for them has no affirmative right to ____________ from the other co-tenants in the absence of an agreement.
contribution
- 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 absence of an agreement.
- But note that the paying co-tenant receives a credit for reasonable repairs in a _________ or ___________ action (subject to the same qualifications for taxes and mortgage payments).
partition or accounting action
Repairs:
* A and B are co-tenants. A spends $10K on new roof for their concurrently owned property. A asks B for $5K and B says no. A institutes a partition action. Court determines that the house with the old roof is valued at $100K and the house with the new roof is valued at $125K, how much do A and B each get?
o A gets $75K and B gets $50K.
Old value without improvement and split it in half. We give the full increase in value to the person who paid for the ________.
repair
Regarding ____________, a co-tenant making or paying for them has no affirmative right to contribution from the other co-tenants.
improvements
Unlike the rule regarding repairs, a co-tenant paying for ____________ gets no credit for the cost of_________ in an action for an accounting or for partition.
improvements
improvements
The improving co-tenant does not necessarily always eat the value of the improvements, 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.
The general rule is that the interest of the improver is protected, and this can be accomplished without detriment to the interests of the other co-tenants. True or False.
True
A and B own as Tenants in Common. Roof needs repair. A fixes it, but B doesn’t give $. A puts in pool. Again, B doesn’t contribute. Partition by sale occurs. Roof increased value $10K and Pool increased value $20K. Original value w/ repairs and improvements was $200K, now $230 (sale price). How much does A get?
A gets 130,000 and B will get 100,000.
Contribution and Repairs – one scenario where obligations for contribution in the context of repairs will be upheld is the obligation to
clean up environmental contamination.
You can get an action to force the other people to pay their part.
In an ___________ for rents and profits, the improver is allowed all increments in value (if any) attributable to the improvements.
accounting
Where improvements cost more than they yield in increased sales or rental value, the __________ bears the full downside risk.
improver
Where the improvements increase the value beyond their cost, the __________ gets the full upside (the total increase in value).
improver
