Concurrent Estates

Question 1

What is a concurrent estate? What are the three types?

Answer 1

A concurrent estate is one in which several ppl have rights to enjoyment and possession at the same time. The 3 types are:

• joint tenancy - 2+ ppl own with right of survivorship
• tenancy by entirety - marital interest between spouses + right of survivorship
• tenancy in common - 2+ ppl own withOUT right of survivorship

Question 2

What are the characteristics of a joint tenancy?

Answer 2

A joint tenancy is a concurrent tenancy in which joint owners have a right of survivorship - i.e. if one dies the other gets their property right.

Each JT’s interest is alienable inter vivos - i.e., one may transfer their property right during their lifetime.

The JT interest is not devisable or descendable by will (b/c goes to other JT upon death).

Question 3

How do you create a joint tenancy?

Answer 3

Requires T-TIP

• created at the same time
• with the same title (deed, will, doc)
• with identical, equal interests
• with rights to possess the whole

+ express right of survivor ship (if none, then presumption its tenancy in common)

Note: On exam, is Q says “joint tenants” assume this is true.

Question 4

How can you sever a joint tenancy?

Answer 4

By sale or partition.

1. Sale - when one JT sells, the new relationship = tenancy in common (but if there are 3 JTs, and one sells, then there is still a JT between other two)
2. Partition by:
   - voluntary agreement
   - partition in kind (judicial action to divide property physically)
   - forced sale (judicial action forcing sale)

Note: mortgage does not lead to severance

Question 5

What are the characteristics of a tenancy by entirety? When can it be severed?

Answer 5

A tenancy by entirety is created only between married persons and similar to a joint tenancy. When married persons get property its presumptively a tenancy by entirety.

Features

• creditors for one spouse cannot get at property
• one spouse alone cannot convey right to a third party

Severance is only possible by

• death
• divorce (becomes tenancy in common)
• mutual agreement
• execution by joint creditor (of both)

Question 6

What are the characteristics of a tenancy in common?

Answer 6

A tenancy in common is a concurrent estate in which there is no right of survivorship. Each co-tenant owns an individual part and each has a right to possess the whole.

Each interest is devisable, descendable, and alienable (b/c no right of survivorship).

Note: whenever interests aren’t equal, its a tenancy in common

Question 7

What are the general rights and duties of co-tenants? (wrt possession, profits, improvements, repairs)

Answer 7

• each has right to possess all portions of property, but has no right to exclusive possession of any part (that is ouster)
• if co-tenant has exclusive possession of a part then has right to retain profits from that part
• co-tenant who leases/gets profit from part of property and does not have exclusive possession must share profits equally with other co-tenants
• co-tenant cannot acquire possession of whole by adverse possession
• no right to contribution of improvements made by on co-tenant, but they MUST contribute for repairs
• co -tenant must not commit voluntary, permissive, or ameliorative waste

Question 8

What happens when one co-tenant encumbers property interest with, e.g. mortgage/lien?

Answer 8

Only can do so wrt own interest, not wrt other co-tenants interests.

JT –> if in lien jdx, then it won’t sever JT, if in mortgage jdx then it WILL sever JT and becomes TiC