Concurrent Estates Flashcards
what are the three forms of joint ownership and describe them
joint tenancy - two or more own with the right of survivorship
tenancy by the entirety — protected marital interest between spouses with right of survivorship
tenancy in common – two or more own with no right of survivorship
what are the distinguishing features of a joint tenancy
(1) right of survivorship
- joint tenant’s share goes automatically to the surviving joint tenant
(2) alienability intervivos
- joint tenant can sell or transfer his interest during his life
(3) not descendible or devisable [because the property passes to the surviving tenant upon death]
- not transferrable by will [not devisable]
- not transferrable through intestacy statute [not descendible]
how to create a joint tenancy
The four unities
T-TIP
(1) same TIME
(2) by the same TITLE [same will, deed, other document of title]
(3) IDENTICAL, equal interests
(4) rights to POSSESS the whole
AND
clear expression of right of survivorship - magic words “to a and b as joint tenants with the right of survivorship” … otherwise is presumed T in common
how are the shares of a tenancy in common divided?
equal shares are presumed but not required
ex: one party can hold 2/3 while the other two old 1/6
how must the right of survivorship be expressed to create a joint tenancy?
what happens if it it is not expressed?
“To A and B as joint tenants with the right of survivorship”
A conveyance to two or more people, without more, is presumed to be a tenancy in common
how will you know if the bar exam is testing you on the language of joint tenancy right of survivorship?
it will be quoted language of the grant creating the concurrent estate and it will ask you which concurrent estate has been created by that language
otherwise, if the exam identifies parties as joint tenants, take it as given that they are joint tenants with the right of survivorship
how to sever a joint tenancy and acronym
SAP - Sale and Partition
what transactions will not result in severance?
Mortgages in lien theory states
Murder of one joint tenant by the other joint tenant
- UPC and state statutes say that when one JT unlawfully and intentionally kills a co-tenant, any joint property is transformed into a TIC
Will
- a will is ineffective to work a severance because at death the testator’s interest vanishes
lien vs. title theory states
Lien theory states [majority rule]
- mortgage is a lien on title and does not sever joint tenancy
- severance occurs at foreclosure and sale of property
title theory states [minority rule]
- severs joint tenancy because giving a creditor a lien on one’s share is the equivalent of transferring title to that creditor
Explain the implications of a Joint Tenant’s inter vivos sale of her share
may a JT’s sale of her interest be secret?
a voluntary conveyance by a JT of her interest severs the JT as to her interest, so the buyer ends up having a tenancy in common [but the other joint tenants still have a JT between each other, if there are more than one left]
A, B and C, have a JT. If C sells to Z, Z has a 1/3 share in tenancy in common, and A and B still have a JT, each hold 1/3 share.
YES - JT may transfer her interest secretly even without the other’s knowledge or consent
explain the types of partition of a Joint Tenancy
when are the types of partition appropriate?
(1) by voluntary agreement
- An allowable and peaceful way to end the relationship
(2) by judicial action called partition in kind
- an action for a physical division of the property, if in the best interests of all parties
(3) by judicial action called a forced sale
WHEN APPROPRIATE
(1) partition in kind appropriate when black acre is sprawling such that it lends itself to physical division
(2) forced sale is best when black acre is small, single building
(3) partition by some means is done when a creditor levies on the interest [levy = seizure to pay off debt]
what is tenancy by the entirety?
how is it created?
to what extent can it be divided/touched?
DEFINITION
marital estate akin to JT between married partners [as “one person”] with right of survivorship; each spouse has an undivided interest in the whole estate and a right of survivorship
HOW CREATED
arises presumptively in any conveyance to married partners, as long as the marital relationship existed at the time of the creation of the estate (unless language of the grant clearly indicates otherwise)
DIVISION
one spouse alone CANNOT convey to third party / defeat right of survivorship
CREDITORS
creditors of only one spouse cannot touch this tenancy for satisfaction of the debt
PROPERTY
a deed or mortgage executed by only one spouse is ineffective
if one joint tenant or tenant in common executes a mortgage in a lien theory state, and then the tenant dies, what happens to the mortgage?
JOINT TENANT
when the joint tenant who got the mortgage dies, the other JT takes the property free and clear. the mortgage can only be held against the property that the first tenant has
the death of an obligated joint tenant extinguishes the mortgagee or Leinor’s interest
list all the ways you can terminate a joint tenancy, tenancy by the entirety, and tenancy in common:
JOINT TENANCY - right of survivorship may be severed and turned into a Tenancy in common by:
- conveyance by one JT
- agreement of joint tenants
- murder of one co-tenant by another
- simultaneous deaths of co-tenants
- partition, voluntary or involuntary
ENTIRETY - right of survivorship may be severed by:
- death
- divorce - becomes a tenancy in common
- mutual agreement
- execution by joint creditor
- NOT by involuntary partition
TENANCY IN COMMON
- may be terminated by partition
what share of property do JT have?
each tenant has an undivided interest in the whole estate
surviving co-tenant has a right to the whole estate
tenancy in common
- what is it
- words of creation
- who has it
- what do TC have (rights)
- how to terminate
DEFINITION
- estate with no right of survivorship
- only unity that is required is possession
WORDS
- To A and B
- To A and B as joint tenants [if it has no right of survivorship it is TIC even if it says JT]
WHO
- Tenancy in common is PRESUMED in cases where multiple grantees take and the words of conveyance are vague
SHARE / RIGHTS
- each tenant has a distinct, proportionate, individual, undivided interest in the property
- each co-tenant has a right to possess the whole, regardless of individual share in the whole
- each interest is devisable, descendable, and alienable
TERMINATION
- partition
Rights and duties of co-tenants and explanations of those rights and duties [10]
(1) possession
- right to possess all portions of property but no right to exclusive possession of any of it
- no wrongful exclusion allowed (ouster)
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(2) rents and profits - co-tenant in exclusive possession has right to retain profits from their use of the property absent ouster or agreement to the contrary UNLESS it the profits gained are from exploitations of the land, such as mining [have to share net profits gained from that]
- co-tenant who leaves for a while while other tenant is still there has no right to ask for rent
- co-tenant who leases to third party must account to their co-tenants their fair share of the rental income
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(3) adverse possession
Co-tenant in exclusive possession for the statutory period cannot acquire title to the whole to the exclusion of the other co-tenant [no hostility]
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(4) carrying costs [taxes and mortgage interest payments]
each co-tenant must pay his fair share of carrying costs based on ownership interest
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(5) repairs
repairing co-tenant enjoys a right to contribution during the life of the co-tenancy for reasonable, necessary repairs, provide that they gave notice to the other co-tenants of the need for repairs
contribution from other co-tenants must be equal to their fair share based on their ownership interest
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(6) improvements
No right to contribution for improvements unilaterally made without advice and consent of the tenants in common
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(7) waste
A co-tenant must not commit waste … one co-tenant an bring an action against another for waste
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(8) partition
JT and TIC have right to partition [voluntary agreement, in kind, forced sale]
courts prefer in kind but will permit by sale when a fair and equitable physical division cannot be made
restraints on partition by covenants are VALID as long s they are limited to a reasonable time
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(9) encumbrances
You can encumber your own interest with a mortgage etc. but not the interests of another co-tenant
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(10) duty of fair dealing
a confidential relationship exists among co-tenants such one co-tenant’s acquisition of an outstanding title or lien that may affect the estate is deemed to be on behalf of other co-tenants
[difficult to adversely possess against other co-tenants]
what is ouster?
wrongful exclusion of co-tenant from property
ouster is an actionable wrong
what happens at partition when a co-tenant [tenant in common] makes a unilateral improvement to the property?
improver gets a credit equal to any value increase he caused
or
improver suffers a debit equal to the diminution he caused
types of waste and how to bring a waste action
NO WASTE ALLOWED in a co-tenancy - all are actionable
voluntary - willful destruction
[Ex: hammer pictures into the wall badly]
permissive - neglect
[forget to close window during storm]
ameliorative - unilateral change that increases value [still actionable]
[knock down house to make new house]
ACTION
- must be able to quantify damages
- can move for partition if problem is irreconcilable
effect of one tenant in common encumbering her share with a mortgage or lien
the mortgagee can foreclose only on the mortgaging co-tenant’s interest
she may not encumber the interest of the other TIC
