Co-Ownership and Marriage Interests Flashcards
Tenancy In Common
Each tenant in common has a separate but undivided interest in the whole
property
No right of survivorship
– Fully alienable, devisable, and descendible
Tenants in common may hold unequal
shares
Joint Tenancy
1) Right of survivorship and 2) Special requirements for creation
Right of survivorship
– Joint tenants are regarded as a single owner
– “Nothing” passes upon death
Not devisable or descendible (unless only one tenant left)
Joint tenants may not hold unequal shares
Four Unities of Creating Joint Tenancy
Time
Title
Interest
Possession
Use of a “straw person” to create a joint tenancy
Tenancy by the Entirety
Only available to married couples
Requirements of a joint tenancy plus a
fifth unity: marriage
Includes a right of survivorship
– Not descendible or devisable (unless only
one party left)
Severance
– Cannot be achieved through unilateral
conveyance
– Divorce always severs
Common Law Presumptions
– Joint tenancies favored over tenancies in common
– Presumption that a conveyance to a married couple created a tenancy by the entirety
Modern Practice Presumptions
– Tenancies in common favored over joint tenancies
– Joint tenancies require special language
– However, where abolished, clear intent to create tenancies by the entirety are interpreted as joint tenancies because of the intent for a right of
survivorship
Mortgages
Interest in real property to secure a debt
Mortgagor - Home Purchaser
– Borrows the money
– Provides a promissory note
– Provides the security interest
Mortgagee - Bank
– Lends money
– Holds the promissory note
– “Holds” the security interest
Partition by sale allowed when:
(1) Physical attributes of the land make
partition impossible and
(2) The interest of the owners would be
better promoted by sale
Ouster
Exclusion of a party entitled to possession of real property
Adverse possession
• Must be an absolute claim of right
Liability for rent
• Intentional physical exclusion from premises
Separate Property Interests
English Common Law System
H and W have separate property and ownership is given to spouse who acquires the property.
• Modern majority of U.S. jurisdictions.
Community Property Interests
Continental Community Property System
H and W have a marital partnership and share their acquests equally (except gifts, bequests, devises, and descents).
• Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
Coverture
“at marriage a woman moved under her husband’s protection”
Married Women’s Property Act
“to protect the wife’s property from her husband’s creditors”
Old Common Law Divorce
– Property of divorcing spouses remained property of spouse holding title.
– Tenants in Common and Joint Tenants remained the same.
– Property held in tenancy by the entirety was converted into tenancy in common.
– Alimony was a continuation of the support
based on the duty of a husband to his wife.
Modern Law Divorce
Rule of Equitable Distribution
Property divided by the court, in its discretion, on equitable principles. – Needs – Status – Rehabilitation – Fault – Length
Alimony support for only a limited period.
