Concurrent Estates

Question 1

Joint Tenancy generally

Answer 1

Two or more who own and have right of survivorship

Alienable

Not descendible or devisable

4 unities and clear expression

Question 2

Tenancy by the entirety

Answer 2

A protected material interest between spouses and the right to survivorship

Can be created only between married partners - arises presumptively in any conveyance to the married persons unless the language of the grant clearly indicates otherwise

Question 3

Right of survivorship

Answer 3

When one dies, the share goes automatically to the survivor

Last survivor gets the whole estate

Question 4

Alienability

Answer 4

Transferrable, sell, gift, during the holder’s lifetime

Question 5

Descendible or devisable

Answer 5

There isn’t any property interest remaining that a dependents beneficiary may inherent

This survivorship characteristic means that a joint tenant’s attempt to dispose of the property by will is void

Question 6

Four unities

Answer 6

In order to create a joint tenancy, the joint tenants must take their interests
- at the same time
- by the same title
- with identical, equal interests, and
- with rights to possess the whole

The interests of joint tenants must be equal in every way

Question 7

Clear expression of right of survivorship

Answer 7

In addition to the four unities, to create a joint tenancy the grantor must express the right of survivorship
- A and B as joint tenants with the right of survivorship”

Otherwise, conveyance to two or more persons, without more, is presumed to be a tenancy in common
- presumption that any conveyance to two or more is a tenancy in common

If test takers identify parties as joint tenants, take it as a given there is a right of survivorship
- won’t test on this knowledge unless specifically asking what ownership was created

Question 8

Severance of a joint tenancy generally

Answer 8

A joint tenancy will be severed and a tenancy in common results

Can be done by sale and partition

Question 9

Severance and Sale

Answer 9

Alienable so can sell or transfer interest

A voluntary conveyance by a joint tenant of their interest destroys the joint tenancy and the transferee takes as a tenant in common

Can transfer interests secretly

Joint tenancy remains intact as between the other, non-transferring joint tenants

Question 10

Severance and Partition

Answer 10

3 types of partition
- voluntary agreement
- partition in kind
- a forced sale

Question 11

Partition in kind

Answer 11

Physical division of the property if in the best interests of all parties

The property is easily divisible, like a home and a farm

Question 12

Partition - forced sale

Answer 12

In the best interests of all parties, the land is sold and the sale proceeds are divided up proportionately

Single building

Question 13

Severance and mortgages

Answer 13

In most states, a mortgage is a lien on title and does not sever a joint tenancy - severance occurs only if the mortgage is foreclosed and the property is sold
- one taking a mortgage on her portion will not sever the joint tenancy in majority states

In title theory states, where the mortgage is equivalent of transferring title, mortgage will sever the joint tenancy as to the encumbered share - minority view

Question 14

Protection with tenancy by the entirety

Answer 14

Entirely untouchable

Creditors of only one spouse cannot touch this tenancy for satisfaction

One spouse acting alone cannot unilaterally convey

Cannot encumber tenancy by the entirety property and a deed or mortgage executed by only one spouse is ineffective

Question 15

Severance of tenancy by the entirety

Answer 15

Death, divorce, mutual agreement, or execution by a joint creditor of both the spouses

On divorce, the tenancy by the entirety becomes a tenancy in common

Question 16

Tenancy in Common

Answer 16

Concurrent estate with no right of survivorship

Multiple grantees are presumed to take as tenants in common

Question 17

Features of a tenancy in common

Answer 17

Each co-tenant owns an individual part, and each has a right to posses the whole

Each interest is devisable, descendible, and alienable because no right of survivorship

Question 18

Ouster

Answer 18

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

Question 19

Co-tenant and rents and profits

Answer 19

In most states, a co-tenant does not need to pay other co-tenants rent from their use absent ouster or an agreement to the contrary

But 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 (their contribution to the purchase price)
- and net profits gained from exploitations of the land - mining

Question 20

Co-tenants and adverse possession

Answer 20

Unless ouster, 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-tenant

Hostility requirement is absent without ouster

Question 21

Co-tenants - carrying costs, repairs, improvements

Answer 21

Carrying costs: like taxes and mortgage interests
- each pays fair share

Repairing co-tenant enjoys a right to contribution during life of co-tenancy for reasonable, necessary repairs, provided they give notice to other co-tenants of the need
- pays fair share

No right to contribution for improvements
- but at partition, gets credit or debit depending if the improvement increased or decreased value

Question 22

Waste

Answer 22

A co-tenant must not commit waste

Co-tenant is permitted to bring an action for waste against another co-tenant
- voluntary waste is willful destruction
- permissive waste is neglect
- ameliorative waste is unilateral change that increases value (could also have decreased sentimental values, use, etc)

Question 23

Restraints on partition

Answer 23

Usually right to partition can be exercised at any tine, restraints on partition by co-tenants are valid if they are limited to a reasonable time and in a reasonable nature