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Property Law > Concurrent Estates > Flashcards

Concurrent Estates Flashcards

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1
Q

What are the three forms of concurrent ownership?

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

What is joint tenancy?

A

Two or more JTs own with the right of survivorship

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3
Q

What is tenancy by the entirety?

A

A marital interest between married partners with the right of survivorship (fiercely protected form of ownership)

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4
Q

What is a tenancy in common?

A

Two or more JTs own, but with NO right of survivorship

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5
Q

What are the distinguishing characteristics of a joint tenancy? (3)

A
  1. The right of survivorship
  2. Alienable
  3. NOT devisable or descendible (because of right of survivorship)
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6
Q

How is a joint tenancy created? (3 elements)

A
  1. The four unities
  2. Grantor must clearly express the right of survivorship
    (3. Use of a straw-man sometimes)
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7
Q

What is a right of survivorship?

A

When one owner dies, his share passes automatically to the surviving owners (joint tenants or tenancy by the entirety)

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8
Q

What are the four unities of joint tenancy? (Hint: T-TIP)

A

Joint tenants must take their interest:

  1. at the same TIME,
  2. by the same TITLE,
  3. with IDENTICAL interests, and with
  4. the right to POSSESS the whole
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9
Q

When is use of a straw-man required to create a joint tenancy?

A

When the grantor wants to create joint tenancy with another person (to create unity of time and title) (won’t apply to grant to two other people in joint-tenancy)

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10
Q

How are joint tenancies severed? (SPAM)

A

Sale, Partition, And Mortgage

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11
Q

NY QUESTION:

What is the NY rule for use of the straw-man to create a joint tenancy?

A

NY no longer requires the straw man

(Unity of time and title allowed if O explicitly creates the interest)

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12
Q

What is the result of a secret sale of an interest in joint tenancy?

And what are the interests of the: 1) Seller? 2) Non-selling JTs? 3) Buyer?

A

Severs the joint tenancy as to that interest

Joint-tenancy survives as between other non-transferring persons

Buyer is tenant in common (because no unity of Time or Title)

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13
Q

What are the rights of joint tenants?

A

Each owns an identically proportionate share AND the right to possess the whole

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14
Q

In equity, what is the consequence to a joint tenancy when there is a contract for the sale of a share?

A

The sale severs the joint tenancy as to the contracting party’s interest (does not require the contract to be fulfilled b/c of the doctrine of equitable conversion)

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15
Q

What is the doctrine of equitable conversion?

A

Severance as to the interests of joint tenants is effective in equity at the moment the contract is signed;

i.e., the change in JTs’ status doesn’t need to wait for property closing

(“Equity regards as done that which ought to be done”)

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16
Q

What are the three variations on severance and partition of a joint tenancy?

A
  1. By voluntary agreement (peaceful termination)
  2. Partition in kind (court action for physical division of blackacre; if in the best interests of all)
  3. Forced sale (court action to sell blackacre and divide proceeds proportionately; if in the best interests of all)
17
Q

When is a partition in kind most appropriate?

A

Sprawlingly large land (farm; vineyard)

18
Q

When is a forced sale to sever joint tenancy most appropriate?

A

Single building (and bad blood)

19
Q

What is the rule for severance and mortgage?

(Majority/NY rule: lien theory)

(Minority rule: title theory)

A

Majority/NY: Execution of mortgage does not sever the joint tenancy (lien theory)

Minority: One tenant’s execution of a mortgage or lien will sever the joint tenancy as to the encumbered share (title theory of mortgages)

20
Q

What is the title theory of mortgages for joint tenancy?

A

Minority rule: Joint tenancy severed by execution of a mortgage

21
Q

What is the lien theory of mortgages for joint tenancy

A

Majority rule (/NY): Joint tenancy NOT severed by execution of a mortgage

22
Q

Which mortgage theory for mortgages does NY follow?

A

Lien theory

23
Q

How is a tenancy by the entirety created?

(Who are the parties?)

(What rights do they have?)

(When does it arise?)

A

A tenancy by the entirety is created

(1) Between married partners (not merely engaged)
(2) With the right of survivorship, and it
(3) Arises presumptively in any conveyance to married partners, unless stated otherwise

24
Q

What are the rights of creditors regarding a tenancy by the entirety?

A

Creditors of only one spouse cannot reach this tenancy (i.e. they must be creditors of both spouses)

25
Q

NY QUESTION

What is the NY rule for creditors regarding a tenancy by the entirety?

A

Creditor may enforce against a single debtor’s interest, but only against that interest (right of survivorship cannot be impaired)

26
Q

What is the rule for unilateral conveyance of an interest in a tenancy by the entirety?

A

Neither tenant, acting alone, can defeat the right of survivorship by unilateral transfer to a 3d party (Unilateral transfer is VOID)

27
Q

What are the features of a tenancy in common? (3)

A
  1. Each co-tenant owns an individual part and has the right to possess the whole
  2. Each interest is devisable; descendible; and alienable (no survivorship)
  3. The presumption favors tenancy in common
28
Q

What are the nine rights and duties of co-tenants (of all types)?

A
  1. Possession of the whole
  2. Rent from co-tenant in exclusive possession
  3. Rent from a 3d party
  4. Adverse possession (generally impossible to gain full-title)
  5. Carrying costs
  6. Repairs
  7. Improvements
  8. Waste
  9. Partition
29
Q

What happens if a co-tenant wrongfully excludes (ousts) a co-tenant?

A

Ousted co-tenant may collect rent

30
Q

What is ouster?

A

When a co-tenant excludes a co-tenant from possession of the whole or any part

31
Q

When is a co-tenant in exclusive possession liable to the other co-tenants for rent? (2 scenarios)

A
  1. When there has been ouster
  2. When all or part has been rented to a 3d party (proportionate share)
32
Q

Why is adverse possession unavailable for co-tenants?

A

Adverse possession requires hostile possession. No hostility in co-tenancy without ouster.

33
Q

NY QUESTION

What is the NY rule for adverse possession for co-tenants?

A

One tenant may acquire complete title by holding exclusive possession for 20 consecutive years (because ouster presumed)

34
Q

What are co-tenant’s obligations for carrying costs?

A

Responsible for fair share of carrying costs (taxes and interest)

Proportionate to undivided share

35
Q

What are a co-tenant’s rights for repairs?

A

Repairing co-tenant has right to contribution for reasonable, necessary repairs, provided she told other co-tenants of the need (proportionate share)

36
Q

What are a co-tenant’s rights for improvements?

A
  1. During the life of the co-tenancy there is no right to “improvements”
  2. BUT, at partition:
    (i) improving co-tenant is entitled to a credit equal to any increase in value she caused, and
    (ii) bears full liability for any decrease in value (See also ameliorative waste)
37
Q

What are a co-tenant’s obligations regarding waste?

(MBE rule)

(NY rule)

A

MBE: A co-tenant must not commit any of the three types of waste

NY: Waste action is available during life of co-tenancy (need not wait until partition)

38
Q

What are a co-tenant’s rights regarding partition?

A

Joint tenants and tenants in common may always bring an action for partition

Property Law (9 decks)

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