Concurrent Estates Flashcards
3 forms of concurrent ownership
Joint tenancy: two or more owned with the right of survivorship
Tenancy by the entirety: a protected marital interest between spouses with the right of survivorship
Tenancy in common: two or more own without the right of survivorship 
Joint Tenancy - distinguishing characteristics - right of survivorship
A joint tendencies distinguishing feature is the right of survivorship. So in one joint tenant dies, their share goes automatically to the surviving joint tenant.
Joint Tenancy - distinguishing characteristics - alienability
A joint tenant interest is alienable inter vivos. This means that it is transferable during lifetime.
Joint Tenancy - distinguishing characteristics - not descendible or devisable
A joint tenant interest is neither divisible by Will nor descendible by intestacy. Since a deceased joint tenants property passes to the surviving joint tenants by operation of law, there isn’t any property interest remaining that it decedents beneficiary may inherent. So, joint tenancy property doesn’t become part of the deceased joint tenants estate, and then executor or administrator has no interest in the property. This survivorship characteristic also means a joint tenants attempt to dispose of the property by will is void.
Joint Tenancy - how to create - 4 unities
The common law requires four unities. Joint tenants must take their interest:
T: at the same time
T: by the same title (meaning, in the same deed, well, or other document of title)
I: with identical and equal interests
P: with rights to possess the whole 
Joint Tenancy - how to create - clear expression of right of survivorship
In addition to the four unities, to create a joint tendency, the grantor must clearly express the right of survivorship. Otherwise, a convenience to two or more persons without more is presumed to be a tendency in common.
If the examiners identify the parties as joint tenants, you can take that as joint tenant with right of survivorship. However, if they simply say, they take concurrently, or together, or even just jointly, those are all tenants in Common. 
Joint Tenancy - how to sever - generally
Under certain circumstances, a joint tenancy will be severed and a tenancy in common results: sale and partition.
Joint Tenancy - how to sever - severance and sale
A joint tenant may sell or transfer her interest during her lifetime. A voluntary conveyance by a joint tenant of their interest destroys the joint tenancy because it disrupts the four unities. The transferee takes as a tenant in common. The joint tenant may transfer their interest secretly.
Joint Tenancy - how to sever - severance and partition
There are three types of partition:
By voluntary agreement: an allowable and peaceful way to end the relationship
By judicial action called partition and kind: an action for physical division of the property, if it is in the best interest of all parties. Works best when the property is large acreage that lends itself to being divisible.
No judicial action called a forced sale: an action when, in the best interest of all parties, the land is sold, and the sale proceeds are divided up proportionally. Works best when the property is a single building. 
Joint Tenancy - how to sever - transactions that will NOT result in severance - 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.
The execution of a mortgage in title state theories, however, does separate joint tenancy. This is the minority view, giving a creditor a lien on one share is the equivalent of transferring title to that creditor which disrupts the four unities. 
Joint Tenancy - how to sever - transactions that will NOT result in severance - murder by joint tenant
Under the uniform probate code and modern statutes, when a beneficiary unlawfully and intentionally kills a joint tenant, any joint property is transferred into a tenancy in Common. 
Joint Tenancy - how to sever - testamentary disposition has no effect
It will is in effective to work a severance because at death the testators interest vanishes. 
Tenancy by the entirety - generally
A tenancy by the entirety is a marital estate, a kin to a joint tenancy. 21 states recognize it. It can be created only between married partners, who take as a fictitious one person with the right of survivorship.
Tenancy by the entirety - how is it created
In states that recognize the tenancy by the entirety, it arises presumptively in any convenience to married partners, unless the language of the grant clearly indicates otherwise.
Tenancy by the entirety - protected - generally
The tenancy by the entirety is a very protected form of coownership. Meaning, not many things will sever it
Tenancy by the entirety - protected - creditors
Creditors of only one spouse cannot touch this tenancy for satisfaction of the debt
Tenancy by the entirety - protected - unilateral conveyance or encumberance
one spouse, acting alone, cannot defeat the right of survivorship by unilaterally conveying it to a third-party. It is a nullity.
An individual spouse also cannot encumber tenancy by the entirety property and a deed or mortgage executed by only one spouse is ineffective.
Tenancy by the entirety - severance
Only death, divorce, mutual agreement, or execution of a lien by a joint creditor of both of the spouses can sever a tenancy by the entirety. On divorce, the tenancy by the entirety becomes a tenancy in common.
Tenancy in Common - generally
The tenancy in common is a concurrent estate with no right of survivorship. Today, multiple grantees are presumed to take as tenants in common, not joint tenants.
Two features of the tenancy in common:
Each tenant owns an individual part, and each has the right to possess the whole
Each interest is divisible, descendible, and alienable because there are no survivorship rights. 
Rights and Duties of Co-Tenants - possession
Each cotenant has the right to possess all portions of the property, but has no right to exclusive possession of any part. If one cotenant wrongfully excludes, another cotenant from possession of the whole or any part, they have committed ouster. Ouster is an actionable wrong. 
Rights and Duties of Co-Tenants - rents and profits - from co-tenant in exclusive possession
In most states, a cotenant in exclusive possession, has the right to retain profits from their use of the property. That is, they don’t need to share profits with another co-tenant absent ouster or an agreement to the contrary.
Rights and Duties of Co-Tenants - rents and profits - from third parties
A co-tenant who leases all or part of the premises to a third-party, must count to their cotenants, providing them their fair share of the rental income. Their fair share equates to a pro rata share based on their ownership.
Cotenants in exclusive possession must also share net profits gained from exploitations of the land, such as mining.
Rights and Duties of Co-Tenants - rents and profits - adverse possession
Unless they have ousted, the other cotenant, the cotenant in exclusive possession for the statutory adverse possession cannot acquire title to the whole to the exclusion of the other cotenant, because the hostility element of adverse possession is absent.
Rights and Duties of Co-Tenants - rents and profits - carrying cost
Caring cost are things such as taxes and mortgage interest payments. Each pay is for their fair share based on their pro rata ownership.
Rights and Duties of Co-Tenants - rents and profits - repairs
The repairing co-tenant enjoys a right to contribution during the life of the cotenancy for reasonable, necessary repairs, provided they gave notice to the other cotenants of their need for the repairs. Contribution is a pro rata share based on ownership. 
Rights and Duties of Co-Tenants - rents and profits - improvements
During the life of the cotenancy, there is no right to contribution for improvements made by one cotenant.
At partition, the improving cotenant gets a credit if the improvement caused an increase in value, or the improver gets a debit if the improvement caused a decreased in value.
Rights and Duties of Co-Tenants - rents and profits - waste
A cotenant must not commit waste. During the life of the cotenancy, a cotenant is permitted to bring an action for waste against another cotenant.
There are three types of waste :
Voluntary waste is willful destruction. Usually any intentional act.
Permissive waste is neglect, the tenant fails to do something.
Ameliorative waste is unilateral change that increases value.
Rights and Duties of Co-Tenants - rents and profits - partition
A joint tenant or tenant in Common has a right to bring an action for partition. Recall the three types of partition, voluntary agreement, partition, and kind, and forced sale. Courts prefer partition and kind, but will permit partition by sale when a fair and equitable physical division of the property cannot be made. Other generally, this right may be exercise at any time, restraints on partition by tenants are valid, provided that they are limited to a reasonable time.
Rights and Duties of Co-Tenants - rents and profits - effect of one concurrent owner’s encumbering the property
A joint tenant or tenant in Common may encumber her interest, for example, by mortgage or judgment lien, but may not encumber the interest of the other covenants.
If, for example, one tenant in common mortgages, her interest, the mortgage can foreclose only on the mortgage and co-tenants interest. If a joint tenancy is involved, a mortgage and a lien theory state does not sever the joint tenancy, but a foreclosure sale will. Note, however, that in the case of joint tendency, a mortgagee or lienor runs the risk that the obligated cotenant will die before disclosure, extinguishing the mortgagee’s or lienor’s interest.
Rights and Duties of Co-Tenants - rents and profits - duty of fair dealing
A confidential relationship exist among tenants. For example, one cotenants acquisition of an outstanding title Orlean that may affect the estate is deemed to be on behalf of other co-tenants. This is also why it’s difficult for one tenant to adversely possess against another covenant. 
