Concurrent Estates

Question 1

What is the default concurrent estate in MO?

Answer 1

tenancy in common, unless otherwise expressly declared in a grant to be a joint tenancy

Question 2

what are 3 indicators of tenancy in common?

Answer 2

1. “conveyed to A &B”
2. separate but undivided interest in property
3. no survivorship - if one party dies, their interest goes to their estate.

Question 3

What are the 4 things required for joint tenancy?

Answer 3

1. unity of time
2. unity of title
3. unity of interest
4. unity of possession

Question 4

What is unity of time under joint tenancy?

Answer 4

each of the joint interests must vest at the same time

Question 5

What is unity of title under joint tenancy?

Answer 5

one document, one deed

Question 6

What is unity of interest under joint tenancy?

Answer 6

all parties must have equal % interest

Question 7

What is unity of possession under joint tenancy?

Answer 7

each tenant needs to have the right to possess the same thing

Question 8

When does survivorship apply under joint tenancy?

Answer 8

if one party dies, their interest goes to the other parties equally.

Question 9

What is unilaterally severable under joint tenancy?

Answer 9

one party can convey their % to themselves (i.e. three parties own something in join tenancy and one party conveys their interest to themselves - that party is now a tenant in common with the other two - and the other two own their % still as joint tenants

Question 10

What are the requirements of tenancy by entirety (married people)?

Answer 10

Needs joint tenancy requirements plus marriage

not unilaterally severable

Question 11

Can tenancy in entirely be terminated?

Answer 11

yes, both parties must convey property to themselves at the same time to get the 4 unities.

Question 12

What is partition in kind?

Answer 12

to split up land (usually the default)

Question 13

What is partition in sale?

Answer 13

a court forced sale - where the burden is upon the party seeking sale to prove partition is impractical/inequitable

Question 14

What are 2 reasons a partition in sale (a court forced sale) should be ordered?

Answer 14

1. physical attributes of the land are such that a partition is impractical or inequitable.
2. interests of the owner would be better promoted by partitions of sale

Question 15

What is ouster?

Answer 15

the idea of let me in or get out - triggers liability for the whole rent to the other co-tenant

Question 16

What are the two requirements of ouster?

Answer 16

1. refusal to let co-tenant in

2. but both allowed to use the whole thing

Question 17

Riddle v. Harmon

Answer 17

CONCURRENT ESTATES - CONVEYANCES

A joint tenant may terminate a joint tenancy by conveying his or her interest in the property, with or without the knowledge of the other tenant(s), to another party.

Question 18

Does conveying a joint tenancy to oneself as a tenant in common effectively shatter a joint tenancy?

Answer 18

Yes, because there is no reason to maintain the outmoded requirement of involving a third party. It is simpler and more efficient to allow persons to shatter joint tenancies directly rather than set up legal fictions to accomplish the same purpose (straw man).

Question 19

What is the common law notion of a straw man in the destruction of joint tenancies?

Answer 19

Common law: destruction of a joint tenancy required a straw man – a joint tenant had to convey his property interest to a third party (thereby destroying the joint tenancy) then the third party would convey the property interest back to the original tenant. And the return of the property would not restore the joint tenancy.

Question 20

Delfino v. Vealencis

Answer 20

When dividing jointly held property, a partition in kind is favored over a partition by sale.

Question 21

Is a partition in kind preferable to a partition by sale where one holder by tenancy in common?

Answer 21

Yes, a partition of sale should be ordered only where a partition in kind is impracticable or inequitable, and when the interest of the parties would be better suited by sale.

Question 22

What is the default concurrent estate for common law?

Answer 22

Joint tenancy

Question 23

What tenancies have a right to survivorship?

Answer 23

Joint tenancy and tenancy by entirety have right of survivorship – tenancy in common does not

Question 24

Spiller v. Mackereth

If one co-tenant asserts ownership of the property in such a manner as to deprive his co-tenant of his rights to the property, then an ouster has occurred and the ousted co-tenant is entitled to compensation for his interests.

Answer 24

A co-tenant in common, having an undivided right to the entire property, does not owe rent to his co-tenant unless he agrees to, or unless he has effected the ouster of his co-tenant.

Question 25

Does refusing a co-tenants demand for rent or to vacate half of a property constitute an ouster?

Answer 25

No, tenants in common each own an undivided interest in the whole property, so each has the right to enjoy using the full property without paying rent.

However, one co-tenant must honor a demand from the other co-tenant who wishes to use the property as well.

Question 26

When does ouster occur?

Answer 26

If one co-tenant asserts ownership of the property in such a manner as to deprive his co-tenant of his rights to the property, then an ouster has occurred and the ousted co-tenant is entitled to compensation for his interests.

Question 27

Swartzbaugh v. Sampson

Answer 27

A joint tenant may, without the consent of his co-tenant, convey or burden his share of the property only to the extent of his interest in the property.