Concurrent Estates

Question 1

Three Forms of Concurrent Ownership

Answer 1

Joint Tenancy (with right of survivorship)

Tenancy by the Entirety (between spouses with right of survivorship)

Tenants in common (no right of survivorship)

Question 2

Joint Tenancy

Answer 2

A joint tenancy is a form of concurrent ownership in which the tenants have a right of survivorship (surviving tenant owns in fee simple)

A joint tenant’s interest is alienable inter vivos (during life). However, the joint tenant’s interest is neither devisable or descendable (because of the right of survivorship). This means that attempts to dispose of a joint tenant’s interest by will is void.

Question 3

Creation of a Joint Tenancy (unities)

Answer 3

The common law requires four unities to create a joint tenancy (T-TIP):

Joint Tenants must take their interests:

T - at the same time;
T - by the same title (same deed, will, or other document);
I - with identical and equal interests; and
P - with the right to possess the whole.

This means that all joint tenant shares must be equal. If there are three, each own an undivided one third of the estate.

Question 4

Creation of a Joint Tenancy (expression)

Answer 4

In addition to the four unities, to create a joint tenancy, the grantor must clearly express the right of survivorship. Otherwise, a conveyance to two or more persons, without more, is presumed to be a tenancy in common.

NOTE - on MBE if the question states they are joint tenants, it means that they have a right of survivorship

Question 5

GA Creation of a Joint Tenancy

Answer 5

Under GA law, a joint tenancy can be created by a conveyance from one person to themselves and another. There is not requirement that it be created by a third party grantor (straw man)

Question 6

Severance of Joint Tenancy

Answer 6

If a joint tenancy is severed (terminated) a tenancy in common results. A joint tenancy may be severed by sale/transfer or partition.

Question 7

Severance and Sale (joint tenancy)

Answer 7

A joint tenant may sell or transfer her interest during her lifetime. A voluntary conveyance by a joint tenant destroys the joint tenancy. The transferee takes as a tenant in common.

If there are more than two joint tenants, the joint tenancy remains as between the other non-transferring joint tenants.

NOTE - a sell or transfer may be secrete

Question 8

Severance and Partition (joint tenancy)

Answer 8

There are three types of partition

1) Voluntary - an allowable and peaceful way to end the relationship

2) Judicial Partition in Kind - An action for physical division of the property, if in the best interests of all parties. This is preferred when there is a lot of acreage which lends itself to division.

3) Judicial Forced Sale - An action when, in the best interests of all parties, the land is sold and the sale proceeds are divided proportionally. Common when the joint tenancy is in a single building or something which is not readily devisable.

Question 9

Mortgages and Joint Tenants

Answer 9

Lien Theory (majority) - a mortgage lien on title does not sever a joint tenancy. Severance occurs only if the mortgage is foreclosed and the property sold.

Title Lien States (minority) - The execution of a mortgage does sever a joint tenancy. These states view giving a creditor a lien as equal to transferring title to that creditor.

GA FOLLOWS LIEN THEORY - the execution of a security deed by one joint tenant does not cause a severance.

Question 10

Joint Tenants and Murder

Answer 10

Under the UPC and modern statutes, when a joint tenant unlawfully and intentionally kills a co-tenant, any joint property is transformed into a tenancy in common.

Question 11

GA Joint Tenancy and Incapacity

Answer 11

In GA, a joint tenancy is not severed by the incapacity of one of the joint tenants, even if a guardian is appointed for the joint tenant, because the guardian has no beneficial interest in the estate of the incapacitated person and is merely a custodian.

Question 12

Tenancy by the Entirety

Answer 12

A tenancy by the entirety is a marital estate akin to a joint tenancy. It can be created only between married partners, who take as a fictitious one person with the right of survivorship.

NOTE - buying land while engaged does not create a tenancy by the entirety

GA DOES NOT RECOGNIZE TENANTS BY ENTIRETY

Question 13

Tenancy by the Entirety Creation

Answer 13

in states that recognize it, it arises presumptively in any conveyance to married partners unless the language of the grant clearly indicates otherwise.

Question 14

Protections of Tenancy by the Entirety

Answer 14

The tenancy is a vey protected form of co-ownership (can’t touch this)

Creditors - creditors of only one spouse cannot touch this tenancy for satisfaction of the debt

Unilateral conveyance or encumbrance - one spouse, acting along, cannot defeat the right of survivorship by unilaterally conveying to a third party. An individual spouse cannot encumber tenancy by the entirety and a deed or mortgage executed by only one spouse is ineffective.

Question 15

Severance of Tenancy by the Entirety

Answer 15

only death, divorce, mutual agreement, or execution by a joint creditor of both spouses can sever a joint tenancy by the entirety

On divorce the tenancy becomes a tenancy in common

Question 16

Tenancy in Common

Answer 16

A tenancy in common is a concurrent estate with no right of survivorship.

Today, multiple grantees are presumed to take as tenants in common (not as joint tenants)

Characteristics:

1) each co-tenant owns an individual part, and each has a right to possess the whole

2) each interest is devisable, descendable, and alienable (bc there are no right of survivorship)

NOTE - tenants in common don’t have to have equal shares

Question 17

Right of Possession of Co-Tenants

Answer 17

Each co-tenant has the right to possess all portions of the property, but has not right to exclusive possession of any part.

If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, they’ve committed ouster.

Ouster is an actionable wrong.

Question 18

Right to Rents and Profits of Co-Tenants

Answer 18

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 an ouster or an agreement to the contrary. (don’t have to pay the others rent for maintaining exclusive possession)

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.

Co-tenants in exclusive possession must also share net profits gained from exploitations of the land, such a mining.

Question 19

Adverse Possession and Co-Tenants

Answer 19

Unless they’ve ousted the other co-tenants, 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-tenants (the hostility element is missing)

Question 20

Costs for Co-Tenants

Answer 20

Carrying Costs - Each co-tenant must pay their fair share based on their respective interests (taxes, mortgage interests)

Repairs - A repairing co-tenant enjoys a right to contribution during the life of the co-tenancy for reasonable, necessary repairs, provided they gave notice to the other tenants of the need for the repairs.

Improvements - During the life of the co-tenancy, there is no right to contribution for improvements made by one co-tenant

Question 21

Waste and Co-Tenancy

Answer 21

A co-tenant must not commit waste. During the life of the co-tenancy, a co-tenant is permitted to bring an action for waste against another tenant.

There are three types of waste:
1) Voluntary - willful destruction
2) Permissive - neglect
3) Ameliorative - unilateral change that increases the value

Question 22

Partition of Co-Tenancy

Answer 22

A joint tenant or tenant in common has a right to bring an action for partition (voluntary, in kind, forced sale)

Courts prefer partition in kind but will permit a forced sale when a fair and equitable physical division of the property cannot be made.

Generally, this right may be exercised at any time, however restraints on partition by co-tenants are valid, provided they are limited to a reasonable time.

Question 23

GA Uniform Partition of Heirs Property Act

Answer 23

The purpose of the act is to avoid sales of family property over the objection of family members. The act applies to property owned by heirs as tenants in common where there is no agreement governing partition.

Act establishes a hierarchy of remedies:

1) purchase of the tenancy in common interest by those co-tenants who did not petition the court for a forced sale of the property

2) partition in kind of the property

3) a market sale of the property

Question 24

Unilateral Encumbrance of Co-Tenancy

Answer 24

a joint tenant or tenant in common may encumber her interest (mortgage, judgment lien), but may not encumber the interests of other tenants.

The mortgagee or lien holder may only foreclose on the encumbered interest.

NOTE - in a joint tenancy, the mortgagee or linear bears the risk that the obligated co-tenant will die before foreclosure, extinguishing their interest