Concurrent Estates Flashcards
Joint Tenancy generally
Two or more who own and have right of survivorship
Alienable
Not descendible or devisable
4 unities and clear expression
Tenancy by the entirety
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
Right of survivorship
When one dies, the share goes automatically to the survivor
Last survivor gets the whole estate
Alienability
Transferrable, sell, gift, during the holder’s lifetime
Descendible or devisable
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
Four unities
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
Clear expression of right of survivorship
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
Severance of a joint tenancy generally
A joint tenancy will be severed and a tenancy in common results
Can be done by sale and partition
Severance and Sale
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
Severance and Partition
3 types of partition
- voluntary agreement
- partition in kind
- a forced sale
Partition in kind
Physical division of the property if in the best interests of all parties
The property is easily divisible, like a home and a farm
Partition - forced sale
In the best interests of all parties, the land is sold and the sale proceeds are divided up proportionately
Single building
Severance and mortgages
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
Protection with tenancy by the entirety
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
Severance of tenancy by the entirety
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
Tenancy in Common
Concurrent estate with no right of survivorship
Multiple grantees are presumed to take as tenants in common
Features of a tenancy in common
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
Ouster
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
Co-tenant and rents and profits
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
Co-tenants and adverse possession
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
Co-tenants - carrying costs, repairs, improvements
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
Waste
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)
Restraints on partition
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
