concurrent estates

Question 1

list (3)

What are the types of concurrent ownership

Answer 1

1. Joint tenancy
2. Tenancy by the entirety
3. Tenancy in common

Question 2

What is Joint tenancy

Answer 2

when two or more ppl own property with rights of survivorship

Question 3

What is Tenancy by the entirety

“cant touch this”

Answer 3

a protected marital interest btwn spouses with the right of survivorship (need marriage)

Question 4

What is Tenancy in common

Answer 4

Two or more own without the right of survivorship

Question 5

In a JT, when one JT dies, what result

Answer 5

share goes to surviving T

Question 6

A JT interest is transferable during:

Answer 6

their lifetime

meaning that the person who is receiving the portion of the land from the JT must take possession during the lifetime of the original JT

Bob has JT with Amanda. Bob devises interest to daughter. Daughter has to gain possession while Bob is alive. If Bob put it in his will instead, Daughter will get land after Bob dies and Daughter will miss out! Amanda will get Bob’s land because she has ROS.

Question 7

Can a JT pass thru will or intestacy

Answer 7

NO

the share will go to other JTs

Question 8

T-TIP

How to create a JT

Answer 8

FORMULA: T-TIP + grantor expressing ROS

Joint tenants must take their interests

1. at the same time
2. by the same title
3. with identical, equal interests
4. with rights to possess the whole

need T-TIP and grantor clearly expressing right of survivorship → otherwise presumed to be TIC

Question 9

In a JT all interests must be

Answer 9

equal shares

Question 10

SAP

How to sever a JT

Answer 10

Severance happens through

Sale And Partition

Question 11

list (3), VPF

Ways to severance and partition a JT

Answer 11

1. Voluntary agreement
2. ***by judicial action of Partition in kind ****- judicial action for physical division of property ,if in best interests of parties; usually in large sale (i.e. vineyard)
3. by judicial action of Forced sale - judicial action for sale and proportional division of sale proceeds; usually when a single building (i.e. home, commercial space etc)

***** courts prefer PIK *****

Question 12

What is the lien theory (aka majority rule) for JT severance regarding mortgages

Answer 12

most states follow

A JT’s execution of a mortgage/lien (aka adding a mortgage on property) on her share of property WILL NOT sever the JT

if JT encumbers individual share, the creditor has a lien, which is not enough to sever the JT

A lien is a claim or legal right against assets that are usually used as collateral to satisfy a debt.

Question 13

What is title theory

Answer 13

minority states

encumbrance by lien SEVERS the JT as to the encumbered share

Question 14

TBE is created only by

Answer 14

married partners

Question 15

how is TBE created

Answer 15

presumptively in married partners unless language says otherwise

very protected form of co-ownership

Question 16

list (4)

how is TBE severed

Answer 16

1. death of one spouse
2. divorce
3. mutual agreement - meaning both spouses agree
4. execution of severance by a joint creditor meaning the creditor belongs to both spouses

Question 17

on divorce, TBE becomes

Answer 17

TIC

Question 18

Under a TBE can an individual spouse acting alone convey property to a 3rd party (i.e. thru a deed) or encumber a (i.e. thru a lien)

what is the exception

Answer 18

NO THEY CANNOT!!!

• deed or mortgage executed by one spouse ineffective*
• creditor of one spouse cannot attach a lien ineffective*

EXCEPTION:**an**individual’s**interest in a TBE**can**be encumbered by**federal tax liens

Question 19

What is TIC

Answer 19

when 2+ ppl own with no right of survivorship

Question 20

“DAD”

Interest of TIC are

Answer 20

1. Devisable aka subj to a security devise like a mortgage
2. Descendible,
3. Alienable aka transferable

Question 21

Can one co-tenant possess the whole by adverse possession? why?

Answer 21

NO

b/c need ouster of the other co-tenant to meet AP’s hostility element

Question 22

VAPe

types of waste

Answer 22

1. V: voluntary waste - willful destruction
2. A: ameliorative waste - improves value
3. Pe: permissive waste - neglect

Question 23

What types of tenants can individually bring actions for partition

Answer 23

JT and TIC

Question 24

Is a restraint on partition for JTs or TICs allowed?

Answer 24

Yes, while the right can be exercised at any time, a restraint is ok as long as reasonable

Question 25

Can a JT or TIC encumber the interests of their co-tenants

Answer 25

NOPE!

Question 26

B in a JT with A. B gets a mortgage on their ½ and then bank moves to foreclose, can bank foreclose the entire property since B and A are in a JT?

Answer 26

NO but the foreclosure WILL sever the JT (because its a SAP)

Question 27

B in a JT with A. B gets a mortgage on their ½ does the bank have an interest in A’s ½ ?

Answer 27

NO

Question 28

B in a TIC with A. B gets a mortgage on their ½ does the bank have an interest in A’s ½ ?

Answer 28

NO

Question 29

B in a JT with A. B gets a mortgage on their ½. B dies. Now A owns the whole property. Can the bank collect from A?

Answer 29

NOPE death will extinguish the mortgagee’s or liienor’s interests. Attaching their interest to A is not allowed because that would be encumbering A’s piece with B’s mortgage.

so a JT can be risky for loaners

Question 30

note

A minor may hold title to real property

Question 31

Two brothers inherited a tract of land as joint tenants from their parents. Only half of the acreage was planted with oranges, and the older brother decided that to increase productivity, the balance of the land should be planted with a different variety of oranges. The younger brother refused to participate in the project, and the older brother brought an action for declaratory relief alleging that he was entitled to be reimbursed for half of the cost of the improvement.

Which of the following correctly describes the result in the action?

A- The older brother will be denied the requested judgment.

B- The older brother will be granted the requested judgment.

C- The result depends upon whether the younger brother will receive an economic benefit.

D- The result depends upon whether the improvements will produce sufficient income to amortize their cost.

Answer 31

The older brother will be denied the requested judgment. A co-tenant has no duty to improve the property and cannot force the other co-tenants to contribute to the cost of improvements made by him. Generally, the co-tenant must wait until an action for partition to recoup the value of improvements

Question 32

A man and a woman are tenants in common in a condominium. The man spent $50,000 on improvements to the condominium, which increased its market value by $30,000.

If the man sues the woman for reimbursement, what amount will he receive?

Answer 32

nothing

Question 33

A couple was engaged and looking for a lot on which to build their first house. They purchased a piece of land, taking title as joint tenants with right of survivorship. Before construction of the house could begin, the man discovered that the woman was having an affair, and the engagement was called off. Wanting to obtain the money to run off with her lover, the woman wanted to sell the land, but the man refused to sell. The woman put the land up for sale anyway, and when a buyer agreed to purchase it, the woman forged the man’s signature on the deed conveying the land to the buyer.

Who owns the land?

Answer 33

The man and the buyer as tenants in common.

Because the land was held in joint tenancy, all of the interest in the land could only be conveyed by both of the joint tenants. The forgery of the man’s signature on the deed is ineffective to convey his interest in the property.

Question 34

Whether a chattel is a fixture depends upon

Answer 34

1. The nature of the chattel (i.e., how essential the item is to the normal use of the realty);
2. The manner in which the chattel is attached to the realty (the more substantially attached, the more likely it was intended to be permanent);
3. The amount of damage that would be caused by the chattel’s removal; and
4. The adaptation of the chattel to the use of the realty (e.g., custom window treatments, wall-to-wall carpet).