Concurrent Estates

Question 1

What are the forms of concurrent ownership?

Answer 1

1) Joint tenancy = two or more own with a right of survivorship
2) Tenancy by the entirety = a protected marital interest between married partners with the right of survivorship
3) Tenancy in common = two or more own with 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: when only one JT is left, the JT ends

2) A JT’s interest is alienable but is NOT devisable (via will) or descendable (via intestacy) because of the right of survivorship

Question 3

How do you create a joint tenancy?

NOTE: NY Distinction

Answer 3

1) Need the FOUR UNITIES (T-TIP)
JT’s must take their interests:
Time: at the same time
Title: by the same title (instrument, e.g. deed)
Interest: with identical interests
Possession: with right to posess the whole

2) Grantor must CLEARLY/EXPLICITLY express the right of survivorship

3) To create a JT with a 3rd party, use a straw
Convey to straw
Straw conveys back to grantor and 3rd party so Four Unities are present
NY DISTINCTION: by statute there is NO need to use a straw in NY

Question 4

What are the ways tosever a joint tenancy?

NOTE: NY Distinction

Answer 4

S-P-A-M

1) SALE: a joint tenant can sell or transfer her interest during her lifetime (EVEN without the knowledge/consent of the other tenants)
Buyer becomes a tenant in common
The joint tenancy remains among surviving JTs

**Equitable conversion: a contractto sell severs JT

2) PARTITION:
A. Voluntary Agreement: peaceful severance
B. Partition in Kind: judicial action for physical division IF in best interests of ALL parties (more likely if the property is bountiful)
C. Forced Sale: judicial actionIF sale in best interests of ALL; proceeds divided proportionally (more likely when JT is in a single property)

3) AND 4) MORTGAGE: depends on jurisdiction’s theory…
Title Theory: mortgage/lien severs (minority rule)
Lien Theory: mortgage/lien does NOT sever
** NY DISTINCTION: NYfollows lien theory

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 between married partners with 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 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

** Neither tenant (spouse), acting ALONE, can defeat the right of survivorship by unilateral transfer to a 3rd party

** DEATH or DIVORCE will severa TBTE

Question 6

How can a tenancy by the entirety be created?

Answer 6

It is created between MARRIED partners with 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 with 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 between tenants

Question 8

What are the 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 (without 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 because NO hostility NY DISTINCTION: in NY, a CT may acquire full title by adverse posession if he has EXCLUSIVE posession for 20 CONTINUOUS years (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, ameliorative)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

(i) voluntary; 
(ii) partition in kind; OR 
(iii) forced sale	

At partition, for any improvements…

1) the improving CT is entitled to a credit equal to any increase in value caused by her efforts; OR
2) the “improving” CT would bear full liablity for any drop in value caused by her efforts