Concurrent Estates Flashcards
what is a concurrent estate?
an estate in land that is held simultaneously by several persons, all of whom have the right to enjoyment and possession of the land
what is a joint tenancy?
two or more own with the right of survivorship
what is a tenancy by the entirety?
a protected marital interest between spouses with the right of survivorship
what is a tenancy in common?
two or more own WITHOUT the right of survivorship
what happens when one JT dies?
their share goes automatically to the surviving JT
is a JT interest transferable?
yes (inter vivos = during the holder’s lifetime)
is a JT interest devisable or descendible?
NO (nothing for beneficiary to recieve)
what 4 unities are needed to create a JT?
JTs must take their interests… (T-TIP)
1) at the same TIME
2) by the same TITLE (via same deed, will, etc)
3) with IDENTICAL, equal interests (must be equal in EVERY way)
4) with rights to POSSESS the whole
under modern law, what additional fact is required to create a JT?
grantor must clearly express the right of survivorship (if not, presumed to be a T in C)
what transactions will sever a JT?
sale and partition (SAP)
if JT transfers/sells their interest during their lifetime, what does the transferee take as?
a tenant in common
may a JT transfer their interest secretly?
yes (even without the other JTs knowledge/consent)
if more than two JTs, will sale/transfer of one JT’s interest sever JT between them?
NO (JT remains intact as between the other remaining (non transferring) JTs while buyer is a T in C with them)
what are the three kinds of partition?
1) by voluntary agreement
2) partition in kind
3) forced sale
what is a partition in kind?
an action for physical division of the property (if it’s in the best interest of the party)
when is partition in kind the best choice?
when land at issue is large/there’s lots of acreage (easily dividable)
what is a forced sale?
an action when, in the best interest of the parties, land is sold and the sale proceeds are divided up proportionally
when would a forced sale work best?
when the property at issue is a single building or home (not easily dividable)
under the lien theory (majority view), will a mortgage sever a JT?
no (will sever ONLY if the mortgage is foreclosed and the property is sold)
under the title theory (minority view), will a mortgage sever a JT?
yes, as to the encumbered share (equivalent to giving creditor title)
how is a tenancy by the entirety created?
arises presumptively in any conveyance to married partners (unless language of grant says otherwise)
can creditors of only one spouse go after a tenancy by the entirety to satisfy a debt?
NO (TbE = very protected form of co-ownership)
can one spouse acting alone defeat right of survivorship by conveying to a third party?
NO
can one spouse acting alone encumber the property?
NO
can one spouse acting alone execute a deed or mortgage on the property?
NO
what circumstances can sever a TbE?
1) death
2) divorce (becomes T in C)
3) mutual agreement
4) execution by a joint creditor of BOTH spouses
absent other language in grant/circumstances, what are multiple grantees presumed to take as? (default position)
tenants in common
what are the two main features of the T in C?
1) each co-T owns an individual part AND each has a right to possess the whole
2) each interest is devisable, descendible, and alienable
what is ouster?
when a co-T wrongfully EXCLUDES another co-T from possession of the whole or any part of property
is a co-T in exclusive possession liable to the others for rent?
NO (unless there’s been an ouster or agreement to the contrary)
what is NOT an ouster?
voluntary vacating of premises
what must a co-T who leases all/part of premises to 3d party provide to their co-Ts?
their fair share of the rental income
when does a repairing co-T have a right to contribution for repairs? (2 rqmts)
1) when those repairs are reasonable and necessary, AND
2) notice was given to co-Ts of the need for repairs
does a co-T have a right to contribution for improvements made by a single co-T?
NO (ie – other co-T could hate the improvement)
what will an improver get if he caused an increase in value to prop?
a credit for that increase
what will an improver get if he caused a decrease in value to prop?
a debit equal to any diminution in value he caused
when is co-T allowed to bring an action against another co-T for waste? (T in C)
during the life of the T in C
what are the three types of waste?
1) voluntary (overt destruction)
2) permissive (neglect)
3) ameliorative (unilateral change that increases value – senti losses)
what type of partition is favored (absent voluntary agreement)?
partition in kind
**NOTE = courts will allow forced sale if equitable/fair division of prop not possible
