Concurrent Estates Flashcards
What are the three forms of concurrent ownership?
(1) Joint tenancy
(2) Tenancy by the entirety
(3) Tenancy in common
What are the distinguishing characteristics of a joint tenancy?
(1) Right of survivorship - when a tenant dies, their interest passes to the remaining joint tenants by operation of law, NOT their heirs
(2) Alienable - a joint tenant’s interest is alienable inter vivos (i.e., transferrable during the joint tenant’s lifetime)
(3) Not descendible or devisable - a joint tenant’s interest is neither devisable nor descendible (i.e., it may not be passed to heirs by will or intestate succession)
How does one create a joint tenancy?
The common law requires four “unities.” Joint tenants must take their interests (“T-TIP”):
(1) T: at the same TIME;
(2) T: by the same TITLE (i.e., in the same deed, will, or other document of title);
(3) I: with IDENTICAL, equal INTERESTS; AND
(4) P: with rights to POSSESS the whole
In addition, the grantor must CLEARLY express the right of survivorship. Otherwise, a tenancy in common is presumed.
In other words, the interests of joint tenants must be equal in every way—they must take identical interests, at the same time, by the same instrument, with the same right to possession—and the grantor must clearly express the right of survivorship.
How may a joint tenancy be severed (i.e., terminated)? (2 ways)
(1) Voluntary conveyance of a joint tenant’s interest
(2) Partition
What results if a joint tenant voluntarily conveys their interest and only 1 other joint tenant remains? If 2 more more joint tenants remain?
(1) a tenancy in common is created between the new tenant and the remaining tenant
(2) the new tenant takes as a tenant in common, and the remaining joint tenants keep their joint tenancy in the same proportion they had previously
Why does the new tenant take as a tenant in common instead of as a joint tenant?
Because they do not satisfy the unities of time and title. Their interest was gained at a different time from the other joint tenant(s) and through a different legal instrument.
May a joint tenant transfer his interest secretly?
Yes. Neither notice to nor consent of the other joint tenant(s) is required.
HYPO: O conveys Blackacre: “To Phoebe, Ross, and Monica as joint tenants with the right of survivorship.”
(1) What does each own?
(2) Phoebe sells her interest to Chandler. What is the result?
(3) Ross dies, leaving behind his heir, Rachel. What is the final result?
(1) A 1/3 interest as joint tenants
(2) Ross and Monica remain joint tenants with 1/3 interest. Chandler takes Pheobe’s 1/3 interest as a tenant in common.
(3) Monica takes Ross’s interest. Monica now has a 2/3 interest, and Chandler has a 1/3 interest, as tenants in common.
What are the 3 types of partition?
(1) Voluntary agreement: an allowable and peaceful way to end the relationship
(2) Partition in kind: a judicial action for a physical division of the property, if in the best interests of all parties
(3) Forced sale: a judicial action when, in the best interests of all parties, the land is sold and the sale proceeds are divided up proportionately
Under what kind of facts is partition in kind most appropriate? Forced sale?
(1) When the property is “sprawling acreage” (e.g., a tract of land that is easily physically divisible).
(2) When the property is a single building which cannot be physically divided into proportional parts
What kinds of transactions will not result in severance?
(1) Mortgages: in MOST states, a mortgage is simply a lien on title and does not sever joint tenancy unless the mortgage is foreclosed and the property sold.
* CIRCUIT SPLIT* In some states (title theory states), execution of a mortgage DOES sever a joint tenancy because, under title theory, the giving a creditor a lien is the same as transferring title to the creditor.
What kinds of transactions will not result in severance?
(1) Mortgages: in MOST states (lien theory states), a mortgage is simply a lien on title and does not sever joint tenancy unless the mortgage is foreclosed and the property sold.
* CIRCUIT SPLIT* In some states (title theory states), execution of a mortgage DOES sever a joint tenancy because, under title theory, the giving a creditor a lien is the same as transferring title to the creditor.
(2) If a beneficiary intentionally kills a joint tenant, any joint property is transformed into a tenancy in common.
What is a tenancy by the entirety?
A marital estate akin to a joint tenancy in which the married partners take as a fictitious “one person” with the right of survivorship.
How is a tenancy by the entirety created?
In states recognizing tenancy by the entirety, it arises presumptively in any conveyance to married partners unless the language of the grant clearly indicates otherwise
What are the distinguishing characteristics of a tenancy by the entirety?
(1) Can only be granted to partners who are married at the time of conveyance - mere engagement is not enough
(2) Creditors of one spouse cannot touch this tenancy for satisfaction of debt
(3) One spouse, acting alone, cannot defeat the right of survivorship by unilaterally conveying to a third party
