Concurrent Estates

Question 1

Three forms of concurrent ownership

Answer 1

Joint Tenancy
Tenancy by the Entirety
Tenancy in Common

Question 2

The Joint Tenancy Definition

Answer 2

1) Two or more own
2) with right of survivorship
3) joint tenant’s interest is alienable. It is NOT devisable or descendable.

right of survivorship - when one joint tenant dies, his share goes automatically to other joint tenants.

Due to right of survivorship, allows surviving joint tenants to avoid the probate system (hence, it is a disfavored form of ownership).

Question 3

Tenancy by the Entirety Definition

Answer 3

A marital interest between married partners with the right of survivorship.

Question 4

Tenancy in Common Definition

Answer 4

Two or more own with NO RIGHT of survivorship.

Question 5

Creation of Joint Tenancy

Answer 5

Grantor must clearly express right of survivorship AND
Must have the FOUR UNITIES (T-TIP)
1) take interest at same TIME
2) by the same TITLE (same instrument)
3) in IDENTICAL shares
4) each has right to POSSESS the whole.

(may have to use a straw man to achieve the four unities)

Question 6

Severance of Joint Tenancy (SPaM)

Answer 6

Severance and SALE
Severance and PARTITION
Severance and MORTGAGE

Question 7

Severance of Joint Tenancy by SALE

Answer 7

A joint tenant CAN sell or transfer her interest during her lifetime.

May do so secretly, without other JTs consent.

Sale severs joint tenancy as to the seller’s interest b/c disrupts the 4 unities. Buyer is a mere tenant in common.

Joint Tenant remains intact as between the other, non-transferring joint tenants (assuming there were more than 2 originally).

A joint tenant’s mere entering into K for sale will sever her joint tenancy under doctrine of equitable conversion - deemed the buyer’s property as soon as K formed in all but title.

Question 8

Severance of Joint Tenancy by Partition

Answer 8

Three kinds of partition:

1) By Voluntary Agreement - a peaceful way to end the relationship
2) Partition In Kind - a court will award physical division of the property if in the best interest of all parties (best for partition of large rural acreages).
3) Forced Sale - If in the best interest of all, the court will order the land sold and the proceeds divided proportionately (best for single home partition).

Question 9

Severance of Joint Tenancy by Mortgage

Answer 9

MAJORITY Rule: (Lien Theory) A joint tentant’s execution of a mortgage on his interest will NOT sever the joint tenancy.

MINORITY Rule: (Title Theory) One joint tenants execution of a mortgage or lien on his share will sever the joint tenancy as to that now encumbered share.

Question 10

Creation of Tenancy by the Entirety

Answer 10

It can only exist between married partners, and always includes the right of survivorship. In those states that recognize the tenancy by the entirety, it arises presumptively in any grant to married partners, unless stated otherwise.

Can’t Touch This:
Creditors - of only ONE spouse, cannot reach the tenancy
Unilateral Conveyance - neither tenant, acting alone, can defeat the tenancy by a unilateral transfer to a 3rd party.

Question 11

Tenancy in Common

Answer 11

Three Key Features:

1) Each co-tenant owns an individual part and each has a right to POSSESS THE WHOLE
2) Each interest is devisable, descendible, and alienable. There are NO survivorship rights between tenants in common.
3) The presumption favors the tenancy in common (for the same reason it disfavors the joint tenancy - here, tenants in common subject themselves to probate system)

Question 12

Rights and Duties of Co-tenants to know

apply to ALL co-tenancies

Answer 12

Possession
Rent
Adverse Possession
Carrying Costs
Repairs
Improvements 
Waste
Partition

Question 13

Right of Co-tenants to Possession

Answer 13

Each has right to possess the whole; if one co-tenant wrongfully excludes another = wrongful ouster

Question 14

Rights and Duties of Co-tenants - Rent

Answer 14

NO RIGHT to rent from co-tentant in exclusive possession, absent ouster.
BUT a co-tenant who leases all/part of premises to a 3rd party must ACCOUNT to his co-tenants, providing their fair share of the rent income (according to their interest in the tenancy).

Question 15

Co-tenants and Adverse Possession

Answer 15

Absent ouster, a co-tenant may not acquire title to the exclusion of the others through adverse possession.

Question 16

Rights and Duties of co-tenants - Carrying Costs

Answer 16

Each co-tenant is responsible for his or her fair share of carrying costs (taxes and mortgage interest payments) based on his undivided share.

Question 17

Rights and Duties of Co-tenants - Repairs

Answer 17

The repairing co-tenant enjoys a Right to Contribution for 1) reasonable and 2) necessary repairs, 3) provided that she has told the other of the need.

Question 18

Rights and Duties of Co-tenants - Waste

Answer 18

A co-tenant must not commit waste (voluntary/willful destruction, permissive/neglect, or ameliorative/changes that increase value). Co-tenants DO NOT have to wait for partition to pursue claims of waste against others.

Question 19

Rights and Duties of Co-tenants - Improvements

Answer 19

During the life of the co-tenancy there is NO right to contribution for so-called “improvements” (improvement is subjective).

But, at partition, improving co-tentant entitled to a CREDIT for any increase in value caused by her efforts.
AND “improver” bears full liability for any drop in value due to the improvement - reduction from her share at partition.

Question 20

Rights and Duties of Co-tenants - Partition

Answer 20

A joint tenant or tenant in common (not tenant in the entirety) has a right to bring an action for partition. (agreement, partition in kind, forced sale)