Concurrent Estates Flashcards
Basic Idea
An estate in land can be held concurrently by several persons, all of whom have the right to enjoyment and possession of th land
Concurrent Estate Types
1) Joint Tenancy
2) Tenancy by the entirety
3) Tenancy in Common
Joint Tenancy Characteristics
1) Two or more own with RIGHT OF SURVIVORSHIP (deceased JT’s share automatically goes to surviving JT)
2) Interest is alienable inter vivos (transferable during holders lifetime)
3) Not descendible (to pass through heirs through statues (without a will)) or devisable (passing by will)
How to create a joint tenancy
Four unitites:
T: at same time
T: by same title
I: Identitical equal interests
P: right to Possess WHOLE
AND Clear expression of right of survivorship
Main Types Severance of Joint Tenancy
1) Sale
2) Partition
Severance of JT by Sale
JT sells/transfers during lifetime, even in secret or unconsented to.
Buyer is a TiC. If 3+ people, remanining people are still JTs
Severance of JT by Partition
Three types of partitions:
1) Voluntary agreement
2) Judicial Action (In kind) -> physical division of property
—–fact pattern: sprawling acreage/large tract
3) Judicial Action (Forced sale) -> division of proceeds
—–fact pattern: single building
Severance of JT by mortgage
MAJORITY: (lien theory): No severance
—-Exception: mortgage is foreclosed and the property is sold.
MINORITY: (title theory states): severs
Severance of JT by murder
One JT intentionally murders another, transformed into TiC.
Tenancy by the Entirety
1) Between married partners ONLY
2) akin to JT
3) a think in 21 states
4) Basically untouchable
—–creditors of only one spouse cannot touch this tenancy for satisfcation of debt
——one spouse acting alone cannot defeat the right of survivorship by a unitlateral conveyance to a third party
How to create TbtE
Arises presumptivley in any conveyance to married parties, unless language of grant clearly indicates otherwise
Severance of TbtE
Only death, divorce, mutual agreement, or execution by a joint creditor of both spouses
On divorce, becomes TiC
Tenancy in Common
1) No right of suvivorship
2) Presumed
3) Co-tenant owns individual part + right to possess whole
4) Devisable, descendible, alienable
Co-tenants Rights and Duties: Possession
Each has right to possess ALL portions of the property but has NO right to exclusive possessio of any part.
If one wrongfully excludes another, they’ve committed OUSTER (an actionable wrong).
Co-tenants rights and duties: Rents and Profits
From a co-tenant in exclusive possession: No rent due, UNLESS there has been an ouster.
From third parties: Owed fair share of rental income (based on ownership stake)
Co-tenants rights and duties: Adverse POssession
No AP unless ouster (b/c no hostility)
Co-tenants rights and duties: Carrying Costs
Taxes, mortgage interest payments, etc.
Each pays fair share (based on ownership interest)
Co-tenants rights and duties: Repairs
Repairing tenant enjoyes a right to contribution for REASONABLE NECESSARY repairs, provided they gave notice.
Fair share based on ownership.
Co-tenants rights and duties: Improvments
No right to contribution for improvments “unilaterally made” by one co-tenant.
At partition:
Improver gets/loses for any change in market value the improvment caused. Upside and downside.
Co-tenants rights and duties: Waste
Duty not to commit waste. Co-tenant is permitted to bring an action for waste against other CoT.
Three types of waste:
1) Voluntary (willfull)
2) Permissive (neglect)
3) Ameliorative (unilateral change that increases value) (still within rights to go after for sentimental value)
Co-tenants rights and duties: Partition
Ending the relationship.
Generally, may be exercised at any time, but co-teant can temporarily restrict it if limited to a reasonable time.
Can be partition by agreement, court in kind, court forced sale. Court prefers in kind > forced sale.
