concurrent estates Flashcards
list (3)
What are the types of concurrent ownership
- Joint tenancy
- Tenancy by the entirety
- Tenancy in common
What is Joint tenancy
when two or more ppl own property with rights of survivorship
What is Tenancy by the entirety
“cant touch this”
a protected marital interest btwn spouses with the right of survivorship (need marriage)
What is Tenancy in common
Two or more own without the right of survivorship
In a JT, when one JT dies, what result
share goes to surviving T
A JT interest is transferable during:
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.
Can a JT pass thru will or intestacy
NO
the share will go to other JTs
T-TIP
How to create a JT
FORMULA: T-TIP + grantor expressing ROS
Joint tenants must take their interests
- at the same time
- by the same title
- with identical, equal interests
- with rights to possess the whole
need T-TIP and grantor clearly expressing right of survivorship → otherwise presumed to be TIC
In a JT all interests must be
equal shares
SAP
How to sever a JT
Severance happens through
Sale And Partition
list (3), VPF
Ways to severance and partition a JT
- Voluntary agreement
- ***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)
- 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 *****
What is the lien theory (aka majority rule) for JT severance regarding mortgages
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.
What is title theory
minority states
encumbrance by lien SEVERS the JT as to the encumbered share
TBE is created only by
married partners
how is TBE created
presumptively in married partners unless language says otherwise
very protected form of co-ownership
list (4)
how is TBE severed
- death of one spouse
- divorce
- mutual agreement - meaning both spouses agree
- execution of severance by a joint creditor meaning the creditor belongs to both spouses
on divorce, TBE becomes
TIC
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
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
What is TIC
when 2+ ppl own with no right of survivorship
“DAD”
Interest of TIC are
- Devisable aka subj to a security devise like a mortgage
- Descendible,
- Alienable aka transferable
Can one co-tenant possess the whole by adverse possession? why?
NO
b/c need ouster of the other co-tenant to meet AP’s hostility element
VAPe
types of waste
- V: voluntary waste - willful destruction
- A: ameliorative waste - improves value
- Pe: permissive waste - neglect
What types of tenants can individually bring actions for partition
JT and TIC
Is a restraint on partition for JTs or TICs allowed?
Yes, while the right can be exercised at any time, a restraint is ok as long as reasonable
Can a JT or TIC encumber the interests of their co-tenants
NOPE!
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?
NO but the foreclosure WILL sever the JT (because its a SAP)
B in a JT with A. B gets a mortgage on their ½ does the bank have an interest in A’s ½ ?
NO
B in a TIC with A. B gets a mortgage on their ½ does the bank have an interest in A’s ½ ?
NO
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?
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
note
A minor may hold title to real property
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.
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
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?
nothing
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?
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.
Whether a chattel is a fixture depends upon
- The nature of the chattel (i.e., how essential the item is to the normal use of the realty);
- The manner in which the chattel is attached to the realty (the more substantially attached, the more likely it was intended to be permanent);
- The amount of damage that would be caused by the chattel’s removal; and
- The adaptation of the chattel to the use of the realty (e.g., custom window treatments, wall-to-wall carpet).
