Concurrent Estates

Question 1

What are the 3 forms of concurrent ownership?

Answer 1

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

Question 2

What are the features of a joint tenancy?

Answer 2

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

Question 3

How do you create a joint tenancy?

NOTE: NY Distinction

Answer 3

1) Need the 4 unities (“T-TIP”)…JT’s must take their interests:
* Time: at the same time
* Title: by the same title (instrument, e.g. deed)
* Interest: w/ identical interests
* Posess: 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

Question 4

What are the 3 ways to severing a joint tenancy?

NOTE: NY Distinction

Answer 4

“S-P-A-M”

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 K to sell severs JT
2) **_P_**ARTITION: 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 action IF sale in best interests of ALL; proceeds divided proportionally (more likely when JT is in a single property)
3) AND
4) MORTGAGE: depends on jx theory…
* Title Theory: mortgage/lien severs (minority rule)
* Lien Theory: mortgage/lien does NOT sever (NY DISTINCTION: NY** **follows this rule)

Question 5

What are the features of the tenancy by the entirety?

NOTE: NY Distinction

Answer 5

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 compromised
• Neither tenant (spouse), acting ALONE, can defeat the right of survivorship by unilateral transfer to a 3d party
• DEATH or DIVORCE will sever a TBTE

Question 6

How can a tenancy by the entirety be created?

Answer 6

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)

Question 7

What are the features of a tenancy in common?

Answer 7

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

Question 8

What are the 5 rights AND responsibilities of co-tenants (tenancy in common)?** **

NOTE: NY Distinction

Answer 8

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 TIC 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:
* Proportionate share carrying costs (tax/mortgage)
* Proportionate share of costs of necessary repairs (if other CTs notified by repairing CT)
* BUT NOT responsible for “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

Question 9

How can a tenancy in common be severed?

Answer 9

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