Concurrent estates

Question 1

Forms of concurrent ownership

Answer 1

1. Joint tenancy
2. Tenancy by the entirety
3. Tenancy in common

Question 2

Joint tenancy

Answer 2

1. Two or more
2. own
3. with the right of survivorship

Question 3

Tenancy by the entirety

Answer 3

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

Question 4

Tenancy in common

Answer 4

1. Two or more
2. own
3. with NO right of survivorship

Question 5

Joint tenancy: distinguishing characteristics

Answer 5

1. The right of survivorship—when one joint tenant dies, his share goes automatically to the surviving joint tenants.
2. Joint tenant’s interest is alienable, but not devisable or descendable.

Question 6

Joint tenancy: creation

Answer 6

1. Four unities
   AND
2. Grantor must clearly express the right of survivorship.

Question 7

Joint tenancy: four unities

Answer 7

Joint tenants must take their interests:

1. At the same time
2. By the same title
3. With identical shares
4. With rights to possess the whole.

Question 8

Joint tenancy: use of a straw

Answer 8

When O wants to be a joint tenant with someone, O must use a straw to satisfy the four unities:

1. O conveys to Straw
2. Straw conveys to O and the other joint tenant as joint tenants with the right of survivorship.

Question 9

Joint tenancy: severance

Answer 9

1. Sale
2. Partition
3. Mortgage (minority)

Question 10

Joint tenancy: severance + sale

Answer 10

A joint tenant can sell or transfer her interest during her lifetime > severs the joint tenancy as to the seller’s interest > buyer holds as a tenant in common.

• Can sell or transfer secretly, without joint tenant’s knowledge or consent.
• In equity, a joint tenant’s mere act of entering into a contract for sale of her share will sever the joint tenancy as to her interest because of the doctrine of equitable conversion.

Question 11

Doctrine of equitable conversion

Answer 11

Equity regards as done that which ought to be done.

Question 12

Joint tenancy: severance + partition

Answer 12

Can partition:

1. By voluntary agreement (peaceful end to relationship)
2. By partition in kind (court action for physical division of the property, if in the best interest of all parties)
3. By forced sale (court action to sell the land and equally divide the proceeds, if in the best interest of all parties)

Question 13

Joint tenancy: severance + mortgage

Answer 13

Joint tenant’s execution of a mortgage or lien on her share will sever the joint tenancy as to the now-encumbered share ONLY in the minority of states that follow the TITLE THEORY of mortgages.

*In states that follow the lien theory of mortgages, a joint tenant’s execution of a mortgage on her interest will not sever the joint tenancy.

Question 14

Tenancy by the entirety: creation

Answer 14

1. Between married partners with the right of survivorship.

2. Arises presumptively in any grant to married partners unless stated otherwise.

Question 15

Tenancy by the entirety: protections

Answer 15

1. Creditors: creditors of only one spouse cannot touch this tenancy.
2. Unilateral conveyance: neither tenant, acting alone, can defeat the right of survivorship by a unilateral transfer to a 3d party.

Question 16

Tenancy in common features

Answer 16

1. Each co-tenant owns an individual part, and has a right to possess the whole.
2. Each interest is devisable, descendable, and alienable. There are no survivorship rights.
3. The presumption favors the tenancy in common.

Question 17

Rights of all concurrent tenants

Answer 17

1. Possession
2. Rent from 3d parties
3. Action for partition

Question 18

Duties of all concurrent tenants

Answer 18

1. Carrying costs
2. Reasonable and necessary repairs
3. No waste

Question 19

Rights of all concurrent tenants: possession

Answer 19

Each co-tenant is entitled to possess the whole.

• If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, there is wrongful ouster.

Question 20

Rights of all concurrent tenants: rent from 3d parties

Answer 20

A co-tenant who leases all or part of the premises to a 3d party must account to his co-tenants, providing them their fair share of the rent income.

Question 21

Rights of all concurrent tenants: action for partition

Answer 21

A joint tenant or tenant in common has a right to bring an action for partition.

Question 22

Duties of all concurrent tenants: carrying costs

Answer 22

Each co-tenant is responsible for her fair share of carrying costs based on her undivided share.

• Carrying costs: taxes and mortgage interest payments, for example.

Question 23

Duties of all concurrent tenants: reasonable and necessary repairs

Answer 23

A repairing co-tenant enjoys a right to contributions for:

1. reasonable and necessary repairs
2. IF she has told the others of the need.

• Cost of repairs are divided based on undivided share of property.

Question 24

Duties of all concurrent tenants: waste

Answer 24

A co-tenant must not commit waste (either voluntary, permissive, or ameliorative).

Question 25

Rent from co-tenant in exclusive possession

Answer 25

Absent ouster, a co-tenant in exclusive possession is NOT liable to the others for rent.

Question 26

Adverse possession of concurrent tenants

Answer 26

Not applicable.

Absent ouster, one co-tenant in exclusive possession for the statutory adverse possession period CANNOT acquire title to the exclusion of the others.

• Because there is no hostility (because there was no ouster).

Question 27

Improvements

Answer 27

During the life of the co-tenancy, there is NO RIGHT to contribution for “improvements”.

• At partition, however:
  – If the “improvement” increased the value of the property, the improving co-tenant is entitled to a credit equal to the increase in value.
  – If the “improvement” decreased the value of the property, the improving co-tenant bears full liability for the drop in value.