Co-Tenancies Flashcards
What are the types of tenancies?
- Tenancy in common
- Joint tenancy
- Tenancy by the entirety
What is a tenancy in common
Co-tenancy where each co-tenant owns an undivided interest in the whole of the property
How is a tenancy in common created?
Creation of a tenancy in common requires unity of possession such that each tenant has the right to possess the whole of the property
Does a tenancy in common entail a right of survivorship?
No
What is a joint tenancy?
A joint tenancy entails
1. each co-tenant owns and undivided interest in the whole of the property
2. each tenant has a right of survivorship
How is a joint tenancy created traditionally?
Traditionally a joint tenancy requires four unities:
1. Time: joint tenants must take at the same time
2. Title: joint tenants must take by the same instrument
3. Interest: joint tenants must take equal shares of the same type
4. Posession: each joint tenant has the right to possess the whole of the property
What are the modern requirements for creation of a joint tenancy?
Today, most jurisdictions require only unity of interest and possession to create a joint tenancy
How can a joint tenancy be severed?
Severance of a joint tenancy by be done through one of the following inter vivos act of one of the joint tenants:
1. seeking a partition
2. joint tenant sells their interest in the property
3. joint tenant mortgages their interest in the property
Will mortgaging of a joint tenant’s interest in their property sever joint tenancy?
Majority view (lien theory): mortgage is viewed as a lien on the property and thus will not sever the joint tenancy
Minority view (title theory): mortgage is viewed as title to the property and mortgaging will sever joint tenancy
What is tenancy by the entirety?
A form of concurrent ownership reserved for married couples, which gives each spouse an undivided interest in the whole of the property and right of survivorship, unless expressly stated otherwise
How is tenancy by the entirety severed?
Severance occurs when:
1. the spouses jointly convey to one another
2. one spouse conveys to the other spouse
3. the couple divorces
What are the rights of co-tenants regarding possession of the property?
Each co-tenant is entitled to possess the whole property
What are rights of co-tenants regarding profits generated from the property?
If profits are produced by one of the co-tenant’s efforts then the other co-tenant has no right to share in those profits, unless they’ve been ousted
If profits are generated by a third party, including through rent, then all co-tenants are entitled to a proportionate share of the profits
What are obligations of co-tenants regarding taxes and mortgage payments?
Each co-tenant must pay a proportionate share of taxes and mortgage payments
What are obligations of co-tenants regarding repairs?
No direct duty of repair is imposed on any co-tenant, however, a co-tenant who makes repairs to the property may be compensated for the amount of the repair by a set-off against any third-party rents received or from proceeds in a partition action
