Concurrent Estates Flashcards
What are the 3 forms of concurrent ownership?
1) Joint tenancy = two or more own w/ a right of survivorship
2) Tenancy by the entirety = a protected marital interest b/t married partners w/ the right of survivorship
3) Tenancy in common = two or more own w/ NO right of survivorship
What are the features of a joint tenancy?
1) The right of survivorship: when 1 JT dies, his share passes AUTOMATICALLY to surviving JTs NOTE: if second to LAST JT dies (i.e. only 1 is left), the JT ENDS
2) A JT’s interest is alienable but is NOT devisable (via will) or descendable (via intestacy) b/c of the right of survivorship
How do you create a joint tenancy? NOTE: NY Distinction
1) Need the 4 unities. JT’s must take their interests:
Time: at the same time
Title: by the same title (instrument, e.g. deed) Interest: w/ identical interests
Possess: w/ right to posess the whole
2) Grantor must CLEARLY/EXPLICITLY express the right of survivorship
3) (If want to self-create JT w/ 3d party) Use a straw (a middleman)
First, convey to straw
Second, straw conveys back to grantor and 3rd party so 4 unities are present
NY DISTINCTION: by statute there is NO need to use a straw in NY
What are the 3 ways tosevering a joint tenancy? NOTE: NY Distinction
1) SALE: a joint tenant can sell/trnfr her interest during her lifetime (EVEN w/o the knowledge/consent of the other tenants) Buyer becomes a tenant in common If there were originally 3 or more JTs, then among the remaining joint tenants the joint tenancy survives
Equitable conversion: simply entering into Kto sell severs JT
2) PARTITION: 3 variations to partition and sever a JT
Voluntary Agreement: peaceful severance (no need for ct to step in)
Partition in Kind: judicial action for physical division IF in best interests of ALL parties (more likely if the property is bountiful) Forced Sale: judicial actionIF sale in best interests of ALL; proceeds divided proportionally (more likely when JT is in a single property)
4) MORTGAGE: depends on jx theory… Title Theory: mortgage/lien severs (minority rule)
Lien Theory: mortgage/lien does NOT sever (NY DISTINCTION: NYfollows this rule)
What are the features of the tenancy by the entirety? NOTE: NY Distinction
Tenancy by the entirety = a protected marital interest b/t married partners w/ the right of survivorship
This is a VERY protected form of co-ownership
Creditors of only ONE spouse can’t touch this tenancy
NY DISTINCTION: in NY, one spouse may mtg his interest and his creditor may enforce against THAT interest, but ONLY as to the debtor spouse’s share. The right of survivorship MUST NOT be compromise.
Neither tenant (spouse), acting ALONE, can defeat the right of survivorship by unilateral transfer to a 3d party
DEATH or DIVORCE will severa TBTE
How can a tenancy by the entirety be created?
It is created b/t MARRIED partners w/ the RIGHT of survivorship
It arrises PRESUMPTIVELY in any conveyance to married partners (unless stated otherwise by the GRANTOR)
What are the features of a tenancy in common?
Tenancy in common = two or more own w/ NO right of survivorship
Each co-tenant owns an INDIVIDUAL part and each has a right to posess the WHOLE
Each interest is devisable (by will); descendable (by intestacy); AND alienable; there are NO survivorship rights b/t tenants
What are the 5rights AND responsibilities of co-tenants (tenancy in common)?NOTE: NY Distinction
1) Posession: each CT is entitled to posess and enjoy the WHOLE (otherwise wrongful ouster)
2) Rent: CT in exclusive possession (w/o ouster) is not liable to other CTs for rent, BUT IF CT rents all/part of premises to 3rd party, must pay other CTs proportionate share of rental income
3) Adverse possession: unless ouster, NO adverse possession by another CT b/c NO hostility
NY DISTINCTION: in NY, a CT may acq full title by adverse posession if he has EXCLUSIVE posession for 20 CONTINUOUS yrs (i.e. an implied ouster)
4) Carrying costs/improvements: each CT responsible for (i) proportionate share carrying costs (tax/mortgage); (ii) proportionate share of costs of necessary repairs (if other CTs notified by repairing CT); BUT NOT responsible for (iii) “improvements” made by another CT (subjective)
5) Waste: a CT must not commit waste (voluntary, permissive, ameloriative) Other CTs can bring a waste action DURING the life of the tenancy in common
How can a tenancy in common be severed?
Severance can be by (i) voluntary; (ii) partition in kind; OR (iii) forced sale
At partition, for any improvements the improving CT is entitled to a credit equal to any increase in value caused by her efforts; OR the “improving” CT would bear full liablity for any drop in value caused by her efforts.
