Concurrent Estates

Question 1

What are the 3 concurrent estates?

Answer 1

1) The Joint Tenancy – 2 or more with the right to survivorship
2) The Tenancy by the Entirety – A martial interest between married partners, with the right of survivorship
3) The Tenancy in Common – 2 or more own with no right of survivorship

Question 2

What are the distinguishing characteristics of the Joint Tenancy?

Answer 2

i) The right of survivorship - When one joint tenant dies his share goes automatically to the surviving joint tenants
ii) Is alienable - Right to alienate or transfer while you are alive, not devisable or descendable - because of intrinsic right of survivorship

Question 3

How do you create the Joint Tenancy?

Answer 3

i. 4 Unities
T: At the same Time
T: By the same Title
I: With Identical shares
P: Right Possess the whole
ii) Grantor must clearly express the right of survivorship
iii) Use of a Straw
(1) E.g. - Dave holds Blackacre in fee simple absolute. He wishes to hold it as a joint tenant with his best friend Paul.
(a) Dave conveys to a proverbial “straw man,” then;
(b) Straw conveys back to Dave and Paul as joint tenants with the right of survivorship
(c) *Must do this to properly satisfy the 4 unities

Question 4

What are the 2 ways to sever the Joint Tenancy?

Answer 4

1. Severance and sale

2. Partition

Question 5

How do you sever a Joint Tenancy by severance and sale?

Answer 5

(1) A joint tenant can sell or transfer his interest during his lifetime
(a) May do so secretly
(b) A sale or transfer will sever the joint tenancy (because it disrupts the 4 unities)
(c) The buyer than becomes a tenant in common
(d) The joint tenancy remains between all other joint tenants

Question 6

How do you sever a Joint Tenancy by partition?

Answer 6

1. In equity, a joint tenants mere act of entering into a K for sale of his share will sever the joint tenancy as to the acting parties interest
2. Severance and Partition – 3 variations
   a. By voluntary agreement
   b. Partition in Kind
   c. Forced sale
3. Severance and Mortgage

Question 7

When severing a joint tenancy by entering into a K for sale of his share?

Answer 7

(a) This is because of the doctrine of “equitable conversion” = equity regards as done that which ought to be done”
(b) Severance occurs on the date the K is signed, not the actual date of the taking (under the doctrine of equitable conversion)