concurrent estates Flashcards
what is a concurrent estate?
an estate in land that can be held concurrently by several persons; they all have right to enjoyment and possession of the land
joint tenancy
two or more own with a right of survivorship
tenancy by the entirety
a protected martial interest between spouses with a right of survivorship
tenancy in common
two or more own without the right of survivorship
alienable
transferable during tenant’s lifetime
descendible
interest that is able to pass to heirs through intestacy statutes
devisable
interest that is capable of being passed by will
the four unities
T-TIP
T: same time
T: by same title (same deed, will, etc.)
I: identical, equal interests
P: with rights to possess the whole
language required to create a joint tenancy?
“[to A and B as joint tenants] with the right of survivorship”
how to sever a joint tenancy?
sever = terminate
SAP: Sale And Partition
joint tenancy severance by sale
occurs where joint tenant sells or transfers her interest during her lifetime
joint tenancy severance by partition
i. by voluntary agreement;
ii. by partition in kind, a judicial action;
iii. by forced sale, a judicial action
effect of mortgage on joint tenancy?
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
tenancy by the entirety
a marital estate akin to a joint tenancy
creation of tenancy by the entirety
T-TIP + married at time of four unities
only ways to sever tenancy by the entirety
- death
- divorce (becomes tenancy in common)
- mutual agreement
- execution by joint creditor of BOTH spouses
tenancy in common
a concurrent estate with no right of survivorship
features of tenancy in common
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!)
co-tenant’s right of possession
each co-tenant has the right to possess ALL portions of the property, but no right to EXCLUSIVE possession of any part
ouster (tenancy in common)
one co-tenant wrongfully excludes another co-tenant from possession of the WHOLE or ANY PART
what does a co-tenant in exclusive possession owe to other co-tenants?
nothing, unless they’ve committed an ouster or agreed otherwise
is third party rent split between co-tenants?
yes - co-tenant who leases ALL or PART of premises to 3P must provide fair share of rental income to co-tenants
how to claim adverse possession in tenancy in common?
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)
carrying costs:
taxes; mortgage interest payments
what is each co-tenant’s responsibility with respect to carrying costs?
each pays in proportion to their share of the whole
repairs in tenancy in common
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
improvements in tenancy in common
co-tenant does NOT have an affirmative right to contributions for unilaterally made “improvements”
