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)
