Co-Ownership and Marital Interests

Question 1

Tenancy in Common

Answer 1

Owners in land that have separate but undivided interests in the property; each individuals (TIC) interests are alienable, devisable, and descendible.

Question 2

Tenancy in Common Background

Answer 2

1. Have equal right to both possession and use of whole property
2. TIC Responsibilities: for taxes, costs, maintenance, and repairs relative to their fractional interest
3. TIC are each owed rents and profits on property in their fractional interest
4. TIC ends through partition and merger
   a. Merger occurs when one party gains all of the other parties interest and the property becomes a fee simple
   b. Partition is a legal separation of parties interest by sale or in kind
   i. By sale is when they sell it and share dividing proceeds based on their own fractional interest
   ii. By kind is when they split the property in half
5. There are no survivorship rights between tenants in common

Question 3

Joint Tenancy with Right to Survivorship

Answer 3

Right of survivorship is both parties own it and when one dies, the other gets it

This is alienable, but NOT devisable or descendible

You break JTROS by selling, death, or divorce

Question 4

What are the four unities to Joint tenancy ?

Answer 4

TTIP.
a. Time: the interest of each join tenant must be acquired or vest at the same time
b. Title: All joint tenants must acquire title by the same instrument (both people on title) or by a joint adverse possession. A joint tenancy can never arise by intestate succession or other act of law
c. Interest: All must have equal undivided shares and identical interests
d. Possession: Each must have a right to possession of the whole. After a joint tenancy is created, however, one joint tenant can voluntarily give exclusive possession to the other joint tenant. (The unity of possession is essential to a tenancy in common as well; none of the other three unities is.)

Question 5

Tenancy by Entirety

Answer 5

This can be created only in married couples (nobody uses this anymore), although several states have legislation permitting this type between unmarried person prohibited from marrying each other

*Is similar to joint tenancy in that the four unities (plus a fifth–the unity of marriage) are required, and the surviving tenant has a right of survivorship

Neither spouse could defeat the right of survivorship of the other by a conveyance of a share to a third party; only a conveyance by both spouses can do so (cannot be severed by conveyance by one party alone)

Divorce terminates the tenancy by entirety because it terminates marriage; absent some agreement to the contrary, the parties usually become tenants in common

Question 6

What is ouster?

Answer 6

Ouster: occurs when an occupying co-tenant restricts access of another co-tenants

If ouster is complete, the ousting co-tenant still owes rents and profits to the other TIC

A co-tenant in possession isn’t liable to a co-tenant not in possession for rent unless there has been an ouster

Question 7

Community Property Primer

Answer 7

Property gained by either spouse during the marriage is presumptively community property

Separate property is property brought into the marriage by either

Spouse or gained by gift or inheritance – these remain separate property throughout marriage

Separate property produces separate property – community property produces community property