Concurrent Estates

Question 1

Joint Tenancy

Answer 1

Two or more owners with the right of survivorship
-Right of survivorship: deceased tenant’s share automatically goes to the surviving tenant
-Alienability (transferrable, but transferring severs the joint tenanct)
-Cannot pass through intestacy or by will
-MUST be equal shares of the land + right to use the whole land
-Can be severed by sale or partition, which results in a tenancy in common

Joint tenants MUST take their interests:
1. Concurrently
2. By the same title (in the same deed, will, or other title document)
3. With identical, equal shares; and
4. With the right to possess (use) the whole

Additionally, there must be clear expression of the rights of survivorship
-No rights of survivorship = tenancy in common (presumption)

Question 2

Types of partition

Answer 2

1. By voluntary agreement
   -Amicable method
2. By partition in kind
   -A judicial action that physically divides the land
   -Useful for large tracts of land
3. By forced sale
   -A judicial action that sells the land and divides the proceeds
   -Useful for one building that would be difficult to divide

Question 3

Lien theory (majority rule on mortgages)

Answer 3

A mortgage is a lien on title and does not sever a joint tenancy
-Severance only occurs when the property is foreclosed and sold

Question 4

Title theory (minority rule on mortgages)

Answer 4

A mortgage/encumbrance by lien on one’s share is the equivalent of transferring title to that creditor
-Severs a joint tenancy

Question 5

Tenancy by the entirety

Answer 5

A marital estate between two owners with the right of survivorship
-Presumption in any conveyance to married partners unless indicated otherwise
-Highly protective: acts by one spouse are not enforceable on the tenancy
>Unilateral conveyance or mortgages cannot encumber the tenancy
-Severance by death, divorce, or by a joint creditor
>Becomes tenancy in common upon severance

Question 6

Tenancy in common

Answer 6

A concurrent estate with no right to survivorship
-Presumption when there are multiple grantees
-Each tenant owns an individual part and has the right to possess (use) the whole
-Each interest is divisible, descendible, and alienable (transferable) because there are no survivorship rights

Question 7

Rights and Duties of Co-tenants

Answer 7

Possession: each tenant has the right to possess (use) the whole, but no right to exclusive possession of any party
-Ouster is wrongfully excluding another co-tenant from the whole or any part

Rents and profits
-Co-tenant in exclusive possession does not need to share profits with other co-tenants absent ouster or a contrary agreement
-Co-tenant who leases all or part of the property to a third party must provide a fair share of the profits with the co-tenants

Adverse possession
-Co-tenants in exclusive possession for the statutory period cannot acquire title to the whole by adverse possession absent ouster

Carrying costs
-Co-tenants are responsible for their fair share of the carrying costs (i.e., taxes, interests, and mortgage payments)

Repairs/Improvements
-Co-tenants are entitled to contributions for necessary repairs
-Co-tenants are not entitled to contributions for unilateral improvements
>But improver gets credit/debit for change in value at partition

Waste
-A co-tenant is permitted to bring an action against the other who commits waste
-Voluntary waste: willful destruction of property
-Permissive waste: neglect that causes damage to property
-Ameliorative waste: unilateral change that increases value of property

Partition
-A co-tenant can bring an action for partition within a reasonable time
-By voluntary agreement, partition in kind, or forced sale
-Courts prefer partition in kind