Concurent interests Flashcards
joint tennancy
Time: interests of each joint tenant must be acquired or vest at the same time
Title: joint tenants must acquire title by the same instrument or by a joint AP
Interest: joint tenants must have equal undivided shares and identical interests measured by duration
“equality” of shares is largely ignored by courts when it counts (can have 1/3 and 2/3 shares)
Possession: each joint tenant must have a right to possess the whole
tenancy in common
Each have a separate but undivided half interest in the estate
Each owns every square foot of the land in common with the other
Unity of Possession essential to tenancy in common
Each interest is alienable, devisable and inheritable
No survivorship rights
“Jointly” law presumes tenancy in common is created
Tenancy in common is the modern courts’ presumption for ambiguous conveyances (absent intent to create survivorship right TC is created)
Intent to create joint tenancy must be clear
Some states require an express provision for survivorship to create a joint tenancy
riddle v. harmons
court rejects notion of “two to transfer” and allows Mrs. Riddle to convey her joint tenancy interest to herself to sever her joint tenancy so she could will her property to someone other than her hubby. Court held the infamous middle man (the straw man) was not needed to sever joint tenancy. It could be done unilaterally and without notice.
harms v. sprague
Plaintiff’s brother mortgaged his interest in the joint tenancy and upon his death plaintiff brought action to quiet title. Court held joint tenancy was not severed by the mortgage because it was like a lien which does not destroy unity of title (because title doesn’t transfer until after the statutory redemption period). The court also held the mortgage did not survive his brother’s death because his interest was extinguished at the moment he died.
Joint tennancy theories
Title theory: JT severed by mortgage because (2 possibilities):
title transfers to mortgagor during life of mortgage
limited title transferred but not enough to sever
Lien theory: JT not severed by mortgage because there is no conveyance of title
Court in Harms followed limited title transfer and lien theories.
Under these theories a mortgage does not sever the unities until after the statutory redemption period, so if it is paid off the JT remains in tact.
Some jurisdictions hold the surviving tenant takes subject to any individual encumbrance, others say encumbrance disappears at death because JT doesn’t “take” upon death, it’s already his.
Joint Tennant bank accounts and safety deposits
True JT account: full survivorship rights
Convenience account: only power to draw on the account, no survivorship rights
Banks go with all purpose JT accounts (because they don’t want to be pulled into the litigation so they pay the money and get out!)
Presumption is that a JT account was created unless intent to create a convenience account is demonstrated by clear and convincing evidence
Opposite presumption for safety deposit boxes: courts presume convenience account instead of JT
judical partitions
Courts like partition because co-tenancies are inefficient
Available for joint tenants and tenants in common; not for tenants by entirety
Any cotenant can seek partition
2 types of judical partitions
Physical partition into separately owned tracts (in kind) OR
Order the land sold and divide the proceeds proportionate to ownership (by sale)
Courts prefer partition in kind over partition by sale
Partition by sale required when in kind is not feasible: when there are too many tenants, single lot with 1 house in middle of city, etc.
delfino v. vealencis
Delfino v. Vealencis: court said partition in kind is favored. Court said partition by sale should only occur when: partition by sale is rendered impracticable by physical attributes of the land and the owners’ interests would be better promoted by the sale. Must consider interests of all parties economic and non economic and must perform balancing test. Court overturned order for partition by sale because the facts weren’t sufficient to overcome partition in kind presumption. Defendant also had to pay an owelty charge to plaintiffs to equal the value of the property partitioned.
Owelty: equitable order from the court to pay this charge to level off the adverse impact partition in kind has on one of the parties.
Courts look to what is in the best interests of all the joint tenants
ouster
An act done by one cotenant to deprive the other of their possessory right
spiller v. mackereth
Spiller took over the building held in cotenancy and other cotenant sent letter demanding he vacate half of the building or pay half of the rent. Cotenant brought an action for ouster when Spiller did neither and court found no ouster because there was no evidence Spiller actually excluded cotenant (denied right of possession). Cotenant did not actually demand occupancy and possession and neither was denied.
AP and co-tennants
When one cotenant seeks to adversely possess he must deny access under a clear expression (clear claim of AP, must be occupancy refusal)
Majority rule is cotenant in exclusive possession doesn’t pay rent to those out of possession unless showing of ouster; some (minority) jurisdictions require that one cotenant in exclusive possession must pay rent to the cotenants not in possession even in absence of ouster
swartzbaugh v. sampson
Swartzbaugh v. Sampson: One joint tenant leased part of joint tenancy land to third party without other’s consent. Other sued to cancel the lease and court held when one joint tenant leases common property to a third party the other cannot cancel the lease or recover exclusive possession. (if it had been a tenancy by the entirety she could have canceled the lease)
Cotenant who collects from third parties rents and other payments arising from the common property must account to cotenants for money received
If neither cotenant occupies the property and one pays the taxes, that one can collect from the other in an action for contribution for their share
One cotenant has no affirmative right to collect from other cotenants for necessary repairs because court doesn’t want to get into what is necessary
Cotenants have no right to contribution for expenditures on improvements
tennacy by the entirety
Same as joint tenancy only a 5th unity: marriage
This could not be unilaterally severed, it took a divorce
This estate is not widely recognized any longer
