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?

Need the 4 unities (“T-TIP”)

NOTE: NY Distinction

Answer 3

1) Need the 4 unities (“T-TIP”)…

JT's must take their interests:			
(T) Time: at the same time
(T) Title: by the same title (instrument, e.g. deed)
(I) Interest: w/ identical interests
(P) Posess: w/ right to posess the whole

2) Grantor must CLEARLY/EXPLICITLY express the right of survivorship
(Policy: JT are disfavored b/c they bypass probate so highly scrutinized)

3) How grantor creates a JT when he intends to be a part of it (i.e. self-create JT w/ 3d party)
→ Use a straw (a middleman)
1. First, convey to straw
2. 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 (self-creating JT w/o straw is allowed in NY)

Question 4

SEVERING A JOINT-TENANCY

What are the 3 ways tosevering a joint tenancy?

MUST HAVE A “S-P-A-M” element to Severe a Joint-Tenancy

NOTE: NY Distinction

Answer 4

MUST HAVE “S-P-A-M” to Severe a Joint-Tenancy

SEVERANCE + ….
(S) SALE
(P) PARTITION
(A) AND
(M) MORTGAGE
————————————————-
(S) 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 the contract to sell severs the JT b/c of the doctrine of equitable conversion
GUARANTEED BAR QUESTION
————————————————-
(P) PARTITION: 3 variations to partition and sever a JT

1. Voluntary Agreement: peaceful severance so no need for ct to step in
2. Partition in Kind: judicial action for physical division IF in best interests of ALL parties
   → more likely if the property is bountiful/sprawling acreage
3. Forced Sale: judicial actionIF sale in best interests of ALL; proceeds divided proportionally
   → more likely when JT is in a single building
   ————————————————-
   (A) AND
   ————————————————-
   (M) MORTGAGE: depends on jx theory…

Title Theory: mortgage/lien severs (minority rule)

Lien Theory: mortgage/lien does NOT sever
**NY DISTINCTION: NYfollows this rule

Question 5

TENANCY BY THE ENTIRETY

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

In states where recognized, it arises presumptively in any conveyance to married couples UNLESS stated otherwise

CREDITORS: Creditors of only ONE spouse can’t touch this tenancy
“CAN’T TOUCH THIS”

**NY DISTINCTION: in NY, one spouse may mortgage 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

UNILATERAL CONVEYANCE: Neither tenant (spouse), acting ALONE, can defeat the right of survivorship by unilateral transfer to a 3d party
→ Unilateral Transfer = NO GOOD

DEATH or DIVORCE will severa TBTE

Question 6

TENANCY BY THE ENTIRETY

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

TENANCY IN COMMON

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

i) devisable (by will);
ii) descendable (by intestacy); AND
iii) alienable; there are NO survivorship rights b/t tenants

Question 8

RIGHTS & DUTIES OF CO-TENANTS
(applies to all tenant types)

What are the 5rights AND responsibilities of co-tenants

NOTE: NY Distinction

Answer 8

1) Posession: each CT is entitled to posess and enjoy the WHOLE (otherwise wrongful ouster)
2) Rent (from CT): CT in exclusive possession (w/o ouster) is not liable to other CTs for rent,
3) Rent (from 3rd party): IF CT rents all/part of TIC to 3rd party, must pay other CTs proportionate share of rental income
4) Adverse possession: unless ouster, NO adverse possession by another CT b/c NO hostility

**NY DISTINCTION:
THEORY OF IMPLIED OUSTER
in NY, a CT may acq full title by adverse possession if he has EXCLUSIVE possession for 20 CONTINUOUS yrs (i.e. an implied ouster)
→ IMPORTANT → POSSIBLE ESSAY QUESTION!

5) Carrying costs: each CT responsible for: Proportionate share carrying costs (taxes/mortgage interest pmts)
6) Repairs: each CT responsible for: Proportionate share of costs of necessary repairs PROVIDED that other CTs were notified by repairing CT of the need for the repair
7) Improvements: CTs NOT responsible for “improvements” made by another CT (subjective)

BUT, at partition, the improving co-tenant is entitled to a credit equal to any increase in value she created

AND, at partition, the so-called “improver” bears full liability for any drop in value she casued

8) Waste: a CT must not commit waste:
i) voluntary - wilful destrction,
ii) permissive - neglect,
iii) ameloriative - “increase” value but made w/o persission

Other CTs can bring a waste action DURING the life of the tenancy in common

9) Partition: A joint tenant or tenant in common has a right to bring an action for partition (not for TBE)
i) Voluntary agreement
ii) Partition in Kind
iii) Forced Sale

Question 9

SEVERING THE TENANCY

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 liability for any drop in value caused by her efforts