Concurrent Estates

Question 1

what is a concurrent estate?

Answer 1

an estate in land that is held simultaneously by several persons, all of whom have the right to enjoyment and possession of the land

Question 2

what is a joint tenancy?

Answer 2

two or more own with the right of survivorship

Question 3

what is a tenancy by the entirety?

Answer 3

a protected marital interest between spouses with the right of survivorship

Question 4

what is a tenancy in common?

Answer 4

two or more own WITHOUT the right of survivorship

Question 5

what happens when one JT dies?

Answer 5

their share goes automatically to the surviving JT

Question 6

is a JT interest transferable?

Answer 6

yes (inter vivos = during the holder’s lifetime)

Question 7

is a JT interest devisable or descendible?

Answer 7

NO (nothing for beneficiary to recieve)

Question 8

what 4 unities are needed to create a JT?

Answer 8

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

Question 9

under modern law, what additional fact is required to create a JT?

Answer 9

grantor must clearly express the right of survivorship (if not, presumed to be a T in C)

Question 10

what transactions will sever a JT?

Answer 10

sale and partition (SAP)

Question 11

if JT transfers/sells their interest during their lifetime, what does the transferee take as?

Answer 11

a tenant in common

Question 12

may a JT transfer their interest secretly?

Answer 12

yes (even without the other JTs knowledge/consent)

Question 13

if more than two JTs, will sale/transfer of one JT’s interest sever JT between them?

Answer 13

NO (JT remains intact as between the other remaining (non transferring) JTs while buyer is a T in C with them)

Question 14

what are the three kinds of partition?

Answer 14

1) by voluntary agreement
2) partition in kind
3) forced sale

Question 15

what is a partition in kind?

Answer 15

an action for physical division of the property (if it’s in the best interest of the party)

Question 16

when is partition in kind the best choice?

Answer 16

when land at issue is large/there’s lots of acreage (easily dividable)

Question 17

what is a forced sale?

Answer 17

an action when, in the best interest of the parties, land is sold and the sale proceeds are divided up proportionally

Question 18

when would a forced sale work best?

Answer 18

when the property at issue is a single building or home (not easily dividable)

Question 19

under the lien theory (majority view), will a mortgage sever a JT?

Answer 19

no (will sever ONLY if the mortgage is foreclosed and the property is sold)

Question 20

under the title theory (minority view), will a mortgage sever a JT?

Answer 20

yes, as to the encumbered share (equivalent to giving creditor title)

Question 21

how is a tenancy by the entirety created?

Answer 21

arises presumptively in any conveyance to married partners (unless language of grant says otherwise)

Question 22

can creditors of only one spouse go after a tenancy by the entirety to satisfy a debt?

Answer 22

NO (TbE = very protected form of co-ownership)

Question 23

can one spouse acting alone defeat right of survivorship by conveying to a third party?

Answer 23

NO

Question 24

can one spouse acting alone encumber the property?

Answer 24

NO

Question 25

can one spouse acting alone execute a deed or mortgage on the property?

Answer 25

NO

Question 26

what circumstances can sever a TbE?

Answer 26

1) death
2) divorce (becomes T in C)
3) mutual agreement
4) execution by a joint creditor of BOTH spouses

Question 27

absent other language in grant/circumstances, what are multiple grantees presumed to take as? (default position)

Answer 27

tenants in common

Question 28

what are the two main features of the T in C?

Answer 28

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

Question 29

what is ouster?

Answer 29

when a co-T wrongfully EXCLUDES another co-T from possession of the whole or any part of property

Question 30

is a co-T in exclusive possession liable to the others for rent?

Answer 30

NO (unless there’s been an ouster or agreement to the contrary)

Question 31

what is NOT an ouster?

Answer 31

voluntary vacating of premises

Question 32

what must a co-T who leases all/part of premises to 3d party provide to their co-Ts?

Answer 32

their fair share of the rental income

Question 33

when does a repairing co-T have a right to contribution for repairs? (2 rqmts)

Answer 33

1) when those repairs are reasonable and necessary, AND
2) notice was given to co-Ts of the need for repairs

Question 34

does a co-T have a right to contribution for improvements made by a single co-T?

Answer 34

NO (ie – other co-T could hate the improvement)

Question 35

what will an improver get if he caused an increase in value to prop?

Answer 35

a credit for that increase

Question 36

what will an improver get if he caused a decrease in value to prop?

Answer 36

a debit equal to any diminution in value he caused

Question 37

when is co-T allowed to bring an action against another co-T for waste? (T in C)

Answer 37

during the life of the T in C

Question 38

what are the three types of waste?

Answer 38

1) voluntary (overt destruction)
2) permissive (neglect)
3) ameliorative (unilateral change that increases value – senti losses)

Question 39

what type of partition is favored (absent voluntary agreement)?

Answer 39

partition in kind
**NOTE = courts will allow forced sale if equitable/fair division of prop not possible