Concurrent Estates Flashcards
there are three forms of concurrent ownership
joint tenancy
tenancy by the entirety
tenancy in common
joint tenancy
two or more own with right of survivorship
tenancy by the entirety
a protected marital interest between spouses with the right of survivorship
tenancy in common
two or more own without the right of survivorship
distinguishing characteristics of a joint tenancy
right of survivorship
alienability
not descendible or devisable
how to create a joint tenancy
the four unities T-TIP
clear expression of right of survivorship
four unities T-TIP
joint tenants must take their interests:
T: at the same time;
T: by the same title
I with identical, equal interests; and
P: with rights to possess the whole
all interests in a joint tenancy must be equal shares
clear expression of right of survivorship
in addition to TTIP, to create a joint tenancy, the grantor must clearly express the right of survivorship
severance of a joint tenancy
under certain circumstances, a joint tenancy will be severed (meaning terminated) and a tenancy in common results. Remember SAP for these circumstances: Sale and Partition.
severance and sale
a joint tenant may sell or transfer her interest during lifetime. A voluntary conveyance by a joint tenant of their interest destroys the joint tenancy. The transferee takes as a tenant in common.
3 types of partition:
by voluntary agreement
by judicial action called parition in kind
by judicial action called a forced sale
transactions that will not result in severance
mortgages
effect of one joint tenant’s murdering another
does testamentary dispotition have effect to sever?
No, a will is ineffective to work a severance because at death the testator’s interest vanishes.
tenancy by the entirety
a tenancy by the entirety is a marital estate akin to a joint tenancy. it can be created only by married, who take as a fictious one person with right of survivorship
is a tenancy by entirety a very protected form of co-ownership?
Yes. Cannot be touched.
severance of a tenancy by entirety
only death, divorce, mutual agreement, or execution by a joint creditor of both the spouses can sever a tenancy by the entirety on divorce, the tenancy by the entirety becomes a tenancy in common.
tenancy in common
a concurrent estate with no right of survivorship. Today multiple grantees are presumed to take as tenants in common, not as joint tenants
remember these two features of a tenancy in common
each co-tenant owns an individual part, and each has a right to possess the whole
each interest is devisable, descensible, and alienable because no survivorship rights between tenants in common
possession as co-tenants
each co-tenant has the right to possess all portions of the property but has no right to exlcusive possession of any part. If one-co-tenant wrongfully excludes another co-tenant from possession of the whole or any part they have committed ouster. Ouster is an actionable wrong.
rents and profits from co-tenant in exclusive possession
in most states, a co-tenant in exclusive possession has the right to retain profits from their use of the property, they don’t need to share profits with other co-tenants absent ouster or an agreement to the contrary.
rents and profits from third parties
a co-tenant who leases all or part of the premises to a third party must account to their co-tenants, providing them their fair share of the rental income
adverse posssion of co-tenants
unless they have ousted the other co-tenant, the co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the whole to the exclusion of the other-co-tenant.
waste of co-tenants
cotenant must not waste. during the life of the co-tenancy, a co-tenant is permitted to bring an action for waste against another co-tenant
there are three types of waste
voluntary (willful destruction)
permissive (neglect)
ameliorative (unilateral change that increases value)
