Co-ownership / Concurrent Interests Flashcards
What is concurrent ownership?
When there is a transfer of real property to two or more owners at the same time.
What is a tenancy in common (TIC)?
When tenants have separate but undivided interests in the whole.
The default estate.
What rights do tenants in common have?
Possess and enjoy the WHOLE property
Transfer their interests freely in their lifetime or at death
What is a joint tenancy (JT)?
Joint tenants are viewed as a single owner, where each JT owns an undivided whole of the property.
What rights do joint tenants have?
The right of survivorship - when one tenant dies, their interest disappears and cannot be passed to anyone else. The surviving tenant now has exclusive ownership of the whole.
What is required to create a JT?
The transferor must state their intent to create a JT AND use survivorship language AND the four unities must be in place.
What are the 4 unities of a JT?
- Possession - each must have a right to possess the whole property
- Interest - all must have equal, undivided shares and identical interests
* Identical interests: all parties have the same interest (ex: all fee simple, all life estate, etc.)
* Equal shares: this is increasingly ignored by courts - Time - the interests of the JT must be acquired at the same time
- Title - all JT must acquire title by the same instrument (all must be conveyed in the same deed)
How can a JT be severed?
If any of the 4 unities cease to exist, the JT turns into a TIC.
A joint tenant can unilaterally sever the JT at any point, without notifying the other joint tenants.
What happens to the remaining party/parties’ interests when a JT is severed?
When one party severs a JT between TWO tenants, the whole JT is destroyed, and only a TIC is left.
When a party severs a JT between MORE than 2 joint tenants, the remaining joint tenants still have a JT with each other, and a TIC with the tenant who severed their interest.
What is a tenancy by the entirety?
A joint tenancy that can only be created by a married couple.
Requires the 4 unities + marriage.
Both tenants have the right of survivorship.
How can a tenancy by the entirety be terminated?
Only be death, divorce, or agreement of both spouses.
What is the ouster requirement for co-ownership?
Unless there has been an ouster, the co-tenant in possession does NOT have to pay rent to the other co-tenants.
Are co-tenants entitled to a share of third-party rent?
Yes, a co-tenant who collects payments form third parties must share the rent on a pro-rata basis, minus expenses.
Are co-tenants entitled to a share of natural resources on the land?
Yes, each co-tenant is entitled to their pro rata share of natural resources on the land
Ex: timber, minerals, oil, gas, etc.
Are co-tenants entitled to a share of business profits?
No, co-tenants aren’t entitled to the profits of another co-tenant’s business conducted on the land.
Unless the business involved leasing the land or harvesting natural resources on it.
Are tenants required to pay taxes, mortgages, etc. on the shared land?
Yes, all co-tenants are entitled to pay their pro rata share of taxes, mortgages, etc.
A co-tenant who pays more than their share of expenses is entitled to recover contributions from the other co-tenants.
Are co-tenants entitled to contribution from other co-tenants for improvements or repairs?
No, co-tenants are NOT entitled to contributions from other co-tenants for improvements or repairs.
What rights to possession does a co-tenant have?
Absent prior agreement, regardless of the co-tenant’s share of ownership, each co-tenant has the right to possess and enjoy the ENTIRE property.
What is a partition?
An action available to joint tenants and tenants in common (but not tenants in entirely) to divide the property between co-tenants.
What are the two types of partition actions?
- Partition in kind: physically divides the property into distinct portions (the preferred method by courts)
- Partition by sale: involves selling the property and dividing the proceeds among co-tenants
Under what circumstances should a partition by sale be used?
When the physical attributes of the land are such that a partition in kind is impracticable or unfair (ex: you cannot physically divide a single-family home)
When the interests of ALL the owners would be better promoted by a partition by sale.
