Concurrent And Marital Ownership Flashcards
What is Tenancy in Common (TinC)?
A form of co-ownership where co-tenants have separate but undivided interests in the property.
What rights do co-tenants have in a Tenancy in Common?
They have the right to use and possess the whole property, even if their fractional interest is smaller.
Can co-tenants in a TinC transfer their interest?
Yes, they can voluntarily transfer their interest inter vivos or devise it via will.
can transfer by conveyance, lease, mortgage, other transfer of a present possessory or future interest
Under what type of transfers can Tenacy in Common be transferred under?
it is freely alienable, devisable, and descendible.
How can an TinC be involuntarily taken away?
by foreclosure on the property or a mortgage of the tenant’s interest or execution of a judgement of creditor’s lein on tenant’s property.
What is the right of survivorship in relation to TinC?
Co-tenants in a TinC do not have a right of survivorship.
What is a required unity to create a TinC?
Unity of Possession.
What presumption exists regarding the creation of a TinC?
TinC is the default form of ownership where there is ambiguity in a conveyance.
What language creates a TinC?
“to A and B as tenants in common.”
How can a TinC be terminated?
Any co-tenant can seek judicial partition or co-tenants can agree to partition.
What is Joint Tenancy (JT)?
A form of co-ownership where co-tenants have a right of survivorship.
each joint tenant has undivided share of property, each interest can be conveyed inter vivos by sale or gift.
But cannot convey interest by will or pass it by intestate succession.
What can a non joint tenant (property owner) do if he wants to convey a JT to future individuals?
like a deed, an owner of property can create a joint tenancy in a will by leaving the property to two or more individuals with express LNG showing that both parties will hold the property as joint tenants with right of survivorship.
property owner can do this only if he does not hold a joint tenancy with another person.
What happens when one joint tenant dies?
Their interest passes automatically to the surviving joint tenant.
Is a joint tenancy devisable or descendible?
No, a joint tenancy is neither devisable nor descendible.
What are the required unities to create a JT?
- Time
- Title
- Interest –> equal share
- Possession –> use and enjoy whole property
What language creates a Joint Tenancy under the CL?
“to A and B as joint tenants with right of survivorship.”
What LNG creates a JT under the Modern Approach?
If the conveyance expressly states an intent to create a JT, then this is permitted
What can most states do under the Modern Approach to create a JT with a quitclaim?
They will allow you to create the JT with a quitclaim but the CL won’t permit this.
What is partition in kind?
refers to the physical division of the property. But if land is not conducive to partition in kind, a court may order a partition by sale.
What is the Balancing Test for determining if parition in sale applies?
if:
□ (1) partition in kind is not convenient,
□ (2) the sale will result in the promotion of at least one of the parties’ interests, and
□ (3) the sale will not prejudice the interests of the other parties.
□ Economic cost is relevant in determining whether to partition in kind or by sale. It is not, however, the determinative factor.
® Other relevant factors include long-standing family ownership, as well as sentimental or emotional interests.
What is the effect of severing a Joint Tenancy?
The right of survivorship is destroyed and the severed interest becomes a tenant in common.
But you cannot sever the tenancy through a will because survivorship occurs prior to and defeats any purported disposition in the will.
What else can happen if you sever a JT?
Sever by parition or if one joint tenant transfers interst inter vivos or by mutual agreement or by foresclosure sale
thus breaking the unities of time and title.
regarding foreclosure, 3rd party purchaser at foreclosre sale gets interest and holds a TinC interest with other co-tenants.
What is the rule from James v. Taylor regarding joint tenancy?
If an instrument of conveyance does not show intent to create a right of survivorship, it cannot create a joint tenancy.
This rule does not look outside for extrinsic evidence for the grantor’s intent, only will look at the 4 corners of the document.
What is the difference between title theory and lien theory in mortgages on Joint Tenancy?
- Title theory: mortgage severs the joint tenancy
- Lien theory: mortgage does not sever the joint tenancy
