Common Law Concurrent Interests

Question 1

Tenancy in common - attributes

Answer 1

i. Separate but undivided interests in the property
ii. Is both descendible and can be conveyed by deed or will
iii. No survivorship rights between tenants in common
iv. Lang “To A and B”
v. When one dies it goes to heirs not the other tenant
vi. Own by the share - undivided

Question 2

Joint Tenancy - attributes

Answer 2

• Each owns the undivided whole of the property so when one dies nothing passes from them to joint tenants
• Right to survivorship - outstanding characteristic
• Regarded as a single owner
• Four essential unities to J.T
  1) Time
  2) Title
  3) Interest
  4) Possession

Question 3

Joint Tenancy - four unities

Answer 3

• Time = must both be vested at the same time
• Title = must acquire title by the same instrument or by a joint AP
• Interest = identical interests measured by duration and equal undivided shares
• Possession = must each have right of possession of the whole, one joint tenant can voluntarily give exclusive possession to the other though

Question 4

Ways to terminate/sever joint tenancy

Answer 4

1) Destroy a unity —> changes into a tenancy in common
2) Participation - 3 kinds
- Voluntary = mutual consent of the parties
- Participation in kind = judicial action of the physical divisn of the property if in best interest of all
- Sale = judicial action if in the best interest of all where land is sold & sale proceeds are divided proportionately

Question 5

Title theory of mortgages

Answer 5

I. If the mortgage transferred title to the mortgagee then the unity of title is disrupted
- They would now have a tenancy in common

Question 6

Lien theory of mortgages

Answer 6

I. If the mortgage was a lien and did not transfer title then the four unities remain intact
- They would continue to have joint tenancy - bc T-TIP would not be destroyed