Concurrent Estates

Question 1

Tenancy in Common

Answer 1

Any conveyance to more than one person is presumed to be a tenancy in common

Concurrent owners have separate but undivided interests in the property

NO right of survivorship

Each co-tenant can transfer the property freely at death as well as during life

Question 2

Joint Tenancy

Answer 2

Defining characteristic is the right of survivorship, whereby the surviving joint tenant(s) automatically take the deceased tenant’s interest.

To create a joint tenancy, the grantor must make a clear expression of intent AND there must be survivorship language (“with a right of survivorship”).

Question 3

Four Unities for a Joint Tenancy

Answer 3

Possession: every joint tenant has an equal right to possess the whole of the property

Interest: joint tenants must have an equal share of the same type of interest (ex. each has 50% share)

Time: joint tenants must receive their interests at the same time

Title: joint tenants must receive their interests in the same instrument

Use PITT to remember!

Note: If one of these four unities is missing, then the joint tenancy is severed, and a tenancy in common is created

Question 4

Ways a Joint Tenancy Can Sever

Answer 4

1) Losing one of the four unities

2) Mortgages: a minority of states follow a title theory, which means that a mortgage severs title and tenancy between the joint tenants and the creditor is converted into a tenancy ion common.

NOTE: A majority of states follow a lien theory, which means the mortgage is treated as a lien and does NOT destroy the joint tenancy.

3) Leases: If a joint tenant leases her share in the property to a tenant, some jurisdictions hold that the lease severs the joint tenancy (BUT there are jurisdictions that treat the lease as a temporary suspension of the joint tenancy)

Question 5

Tenancy By the Entirety

Answer 5

Joint tenancy between married people

Marriage is a fifth unity (sometimes called unity of person)

Has a right of survivorship

Tenants by the entirety CANNOT alienate or encumber their shares without the consent of their spouse

Question 6

Ouster

Answer 6

Co-tenant in possession denies another co-tenant access to the property (eg, one tenant changes the locks, or throws out all the co-tenant’s stuff)

Remedies for an ousted tenant:
- get an injunction granting access to the property
- recover damages for the value of the use while the co-tenant was unable to access the property

Question 7

Third Party Rents in Concurrent Estates

Answer 7

Rent received from a third party’s possession of the property, minus the operating expenses, are divided based on ownership interests of each co-tenant.

Question 8

Operating Expenses in Concurrent Estates

Answer 8

Necessary charges, such as taxes or mortgage payments are divided based on ownership interests of each co-tenant.

A co-tenant can collect contribution from the other co-tenants for payments in excess of her share of the operating expenses.

Question 9

Repairs in Concurrent Estates

Answer 9

There is NO right to reimbursement from co-tenants for necessary repairs. However, the co-tenant who makes the repairs can get credit in a partition action.

Question 10

Improvements in Concurrent Estates

Answer 10

There is NO right to reimbursement for improvements. However, the co-tenant who makes the repairs can get credit in a partition action.

Question 11

Partition

Answer 11

Available to all holders of a joint tenancy or tenancy in common; it’s a unilateral right.

The court will divide property into separate portions.

Courts have a preference for physical division.

BUT court will order a partition by sale if the physical partition is not practical (eg, land has complicated terrain), or not fair to all parties.

Proceeds from a partition by sale are divided among the co-tenants based on. their ownership interests.

Co-tenants can agree not to partition, and this is enforceable provided that the agreement is clear and the time limitation is reasonable (cannot say “no partition ever”).