concurrent estates

Question 1

what is a concurrent estate?

Answer 1

an estate in land that can be held concurrently by several persons; they all have right to enjoyment and possession of the land

Question 2

joint tenancy

Answer 2

two or more own with a right of survivorship

Question 3

tenancy by the entirety

Answer 3

a protected martial interest between spouses with a right of survivorship

Question 4

tenancy in common

Answer 4

two or more own without the right of survivorship

Question 5

alienable

Answer 5

transferable during tenant’s lifetime

Question 6

descendible

Answer 6

interest that is able to pass to heirs through intestacy statutes

Question 7

devisable

Answer 7

interest that is capable of being passed by will

Question 8

the four unities

Answer 8

T-TIP
T: same time
T: by same title (same deed, will, etc.)
I: identical, equal interests
P: with rights to possess the whole

Question 9

language required to create a joint tenancy?

Answer 9

“[to A and B as joint tenants] with the right of survivorship”

Question 10

how to sever a joint tenancy?

Answer 10

sever = terminate
SAP: Sale And Partition

Question 11

joint tenancy severance by sale

Answer 11

occurs where joint tenant sells or transfers her interest during her lifetime

Question 12

joint tenancy severance by partition

Answer 12

i. by voluntary agreement;
ii. by partition in kind, a judicial action;
iii. by forced sale, a judicial action

Question 13

effect of mortgage on joint tenancy?

Answer 13

depends on whether the state follows the LIEN THEORY or the TITLE THEORY
i. if lien theory, then a mortgage does NOT SEVER a joint tenancy UNLESS foreclosed and sold
ii. if title theory, a mortgage DOES SEVER a joint tenancy

Question 14

tenancy by the entirety

Answer 14

a marital estate akin to a joint tenancy

Question 15

creation of tenancy by the entirety

Answer 15

T-TIP + married at time of four unities

Question 16

only ways to sever tenancy by the entirety

Answer 16

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

Question 17

tenancy in common

Answer 17

a concurrent estate with no right of survivorship

Question 18

features of tenancy in common

Answer 18

i. each co-tenant owns and individual part, and each has a right to POSSESS THE WHOLE
ii. each interest is devisable, descendible, and alienable (result of no right of survivorship!)

Question 19

co-tenant’s right of possession

Answer 19

each co-tenant has the right to possess ALL portions of the property, but no right to EXCLUSIVE possession of any part

Question 20

ouster (tenancy in common)

Answer 20

one co-tenant wrongfully excludes another co-tenant from possession of the WHOLE or ANY PART

Question 21

what does a co-tenant in exclusive possession owe to other co-tenants?

Answer 21

nothing, unless they’ve committed an ouster or agreed otherwise

Question 22

is third party rent split between co-tenants?

Answer 22

yes - co-tenant who leases ALL or PART of premises to 3P must provide fair share of rental income to co-tenants

Question 23

how to claim adverse possession in tenancy in common?

Answer 23

there must have been an OUSTER; absent that, the HOSTILITY element of adverse possession is not satisfied
(remember, this is because each co-tenant has a right to POSSESS THE WHOLE)

Question 24

carrying costs:

Answer 24

taxes; mortgage interest payments

Question 25

what is each co-tenant's responsibility with respect to carrying costs?

Answer 25

each pays in proportion to their share of the whole

Question 26

repairs in tenancy in common

Answer 26

repairing co-tenant enjoys a right to CONTRIBUTION for any reasonable, necessary repairs made note: co-tenant has to notify the others of the need for repair note further: like carrying costs, each pays in proportion to their share of the whole

Question 27

improvements in tenancy in common

Answer 27

co-tenant does NOT have an affirmative right to contributions for unilaterally made "improvements"