Concurrent Estates Flashcards
Types of Ownership
Joint Tenancy
Tenancy by the Entirety
Tenancy in Common
Joint Tenancy
Two or more own with the right of survivorship
Joint Tenancy - Characteristics
Right of Survivorship - when one JT dies, their share automatically goes to the other joint tenant.
Alienability - alienable inter vivos; able to transfer interest during their lifetime.
Not Descendible/Devisable - since deceased JT’s property passes to the surviving spouse automatically, there isn’t a property interest left to pass along.
How to Create a Joint Tenancy
TTIP - Time, Title, Identical Interests, Possess
at the same time, by the same title, with identical interests, and with rights to possess the whole.
Must be a clear expression of Right of Survivorship. If not, it is presumed Tenancy in Common.
Severance of a Joint Tenancy
Under certain circumstances, a JT will be severed (terminated) and a tenancy in common results. Remember: SAP (Sale and Partition)
Severance and Sale - a JT may sell or transfer her interest during her lifetime. A voluntary conveyance by a JT of their interest destroys the JT. The transferee takes as a tenant in common
JT may transfer his interest without the knowledge or consent of other JT.
A sale of one JT’s interest severs teh joint tenancy as to the seller’s interest because it disrupts the four unities (TTIP).
Severance by Partition -
1. Voluntary Agreement
2. Judicial Action Called a Forced Sale
3. Judicial Action called Partition in Kind.
Transaction that will not result in severance of JT
Mortgages
JT’s execution of a lien on her share won’t sever the JT in majority of states.
Lien Theory - no severance (most states)
Title Theory - severance; encumbrance of lien will sever the JT as to the encumbered share (minority states)
Testamentary Disposition - JT
Has not effect - a will is ineffective to work a severance because at death the testator’s interest vanishes.
Tenancy by the Entirety
A protected marital interest between spouses with the right of survivorship (recognized in 21 states)
Creation of Tenancy by the Entirety
Arises presumptively in any conveyance to married partners unless the language of the grant clearly indicates otherwise.
Protection - Tenancy by the Entirety (TE)
TE is a very protected form of co-ownership.
Remember with phrase “can’t touch this”
Creditors of only one spouse cannot touch this tenancy for satisfaction of the debt
One spouse, acting alone, cannot defeat the right of survivorship by unilaterally conveying to a third party
One spouse also cannot encumber TE property and a deed or mortgage executed by only one spouse is ineffective.
TE - Severance
Only death, divorce, mutual agreement, or execution by a joint creditor of both the spouses can sever a TE.
On divorce, the TE becomes a tenancy in common.
Tenancy in Common
A concurrent estate (owned by two or more parties) with no right of survivorship.
Each co-tenant owns an individual part, and each has a right to possess the whole.
Each interest is devisable, descendible, and alienable because there are no survivorship rights.
Shares do not have to be equal (i.e., 1/3 and 2/3 ownership)
Rights and Duties of Co-Tenants
Possession and Rents/Profits
Possession - each co-tenant has the right to possess all portions of the property but has no right to exclusive possession of any part. If one co-tenant excludes another from possession of the whole or any party, they’ve committed ouster (an actionable wrong).
Rents and Profits -
1. A co-tenant in exclusive possession has the right to retain profits from their use of the property; that is, they don’t need to share profits with other co-tenants absent ouster or an agreement to the contrary.
- A co-tenant who leases all or part of the premises to a 3P must count to their co-tenants, providing them their fair share of the rental income.
- The co-tenant in exclusive possession (unless ouster) for the statutory adverse possession period cannot acquire title to the whole to the exclusion of the other co-tenant. This is because the hostility element of adverse possession is missing because there is no ouster.
Rights and Duties of Co-Tenants
Waste, Partition, Duty of Fair Dealing
Waste - A co-tenant must not commit waste. A co-tenant is permitted to bring an action for waste against another co-tenant. Three types of waste:
1. Voluntary - willful destruction
2. Permissive - neglect
3. Ameliorative - unilateral change that increases value.
Partition - JT or tenant in common has a right to bring an action for partition. Generally this right may be exercised at any time, restraints on partition by co-tenants are valid, provided they are limited to a reasonable time.
Duty of Fair Dealing - a confidential relationship exists among co-tenants; for example, 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.
