Concurrent estates Flashcards
3 forms of concurrent ownership
joint tenancy, tenancy by the entirety, tenancy in common
joint tenancy
2 or more own w/right of survivorship
tenancy by the entirety
between married partners w/right of survivorship
tenancy in common
2 or more own w/NO right of survivorship
right of survivorship
when a co-tenant dies, his share goes to the surviving co-tenant
joint tenancy - distinguishing characteristics
- Right of survivorship
2. Joint tenant’s interest is alienable (not devisable or descendible)
joint tenancy - creation
- 4 unities - TTIP (time, title, identical interest, possess the whole)
- Grantor must clearly express the right of survivorship.
- In addition to the 4 unities, grantor must clearly state the right of survivorship to create a joint tenancy.
- Requires use of a straw.
joint tenancy - use of straw for creation
- D conveys to straw
- Straw conveys back to D and P as joint tenants w/right of survivorship
Now all 4 unities are present, including time and title
joint tenancy - 4 unities (TTIP)
Time, Title, Identical interest, right to Possess the whole
joint tenancy - severance
SPAM - Sale, Partition AND Mortgage
joint tenancy - severance
sale - selling/transferring interest
Joint tenant can sell or transfer her interest during her lifetime, even w/o others knowledge or consent.
One joint tenant’s sale severs the joint tenancy as to the seller’s interest b/c it disrupts the 4 unities. (New buyer is tenant in common)
To the extent that more than 2 joint tenants started, the joint tenancy remains intact as between the other, non-transferring joint tenants.
joint tenancy - severance
sale - effect of act of entering into a K
In equity, a joint tenant’s act of entering into a K for the sale of her share will sever the joint tenancy as to contracting party’s interest b/c of the doctrine of equitable conversion.
Equitable conversion provides that “equity regards as done that which ought to be done.”
Joint tenancy severed on day of entering into K.
joint tenancy - severance
partition
3 variations
- voluntary agreement - peaceful way to end relationship
- partition in kind - court action, if in the best interests of all, for physical division of property (good for sprawling acreage)
- forced sale - court action, if in the best interests of all, to sell property and divide proceeds proportionally
joint tenancy - severance
mortgage
One joint tenant’s execution of a mortgage or a lien on his share will sever the joint tenancy AS TO THAT NOW ENCUMBERED share ONLY in minority of states that follow TITLE theory of mortgages.
One joint tenant’s execution of a mortgage/line on his share will NOT sever the joint tenancy in the majority of states that follow the LIEN theory of mortgages.
tenancy by the entirety - creation
- Between married partners w/right of survivorship
- In most states that recognize tenancy by the entirety (minority of 21 states), it arises presumptively in any grant to married partners unless stated otherwise
tenancy by the entirety - protection
creditors - creditors of only one spouse cannot reach this tenancy
conveyance - neither tenant acting alone can defeat the right of survivorship by unilateral transfer to a 3rd pty.
tenancy in common - features
- Each co-tenant owns an individual part and each has a right to possess the whole.
- Each interest is d/d/a. There are no survivorship rights between TiC.
- The presumption favors TiC since TiC doesn’t bypass probate
right and duties of co-tenants
Possession, Rent from co-tenant in exclusive possession, Rent from 3rd parties, Adverse possession, Carrying costs, Repairs, Improvements, Waste, Partition
right and duties of co-tenants
possession
Each co-tenant is entitled to possess the whole
If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, he has committed OUSTER.
right and duties of co-tenants
rent from co-tenant in exclusive possession
Absent ouster, a co-tenant in exclusive possession is NOT liable to the other for rent.
right and duties of co-tenants
rent from 3rd parties
A co-tenant who leases all or part of the premises to a third party must ACCOUNT to his co-tenants
right and duties of co-tenants
adverse possession
Unless he has ousted the other co-tenants, one co-tenant in exclusive possession for the statutory adverse period cannot acquire title to the exclusion of the others.
The Hostility element of adverse possession is absent. No hostility b/c no ouster
right and duties of co-tenants
carrying costs
Each co-tenant is responsible for his fair share of carrying costs (taxes and mortgage interest payments) based upon his undivided share.
right and duties of co-tenants
repairs
The repair co-tenant enjoys the right to CONTRIBUTION for necessary, reasonable repairs provided that he has told the other of the need.
right and duties of co-tenants
improvements
During the life of the co-tenancy, there is no right to contribution for “improvements.”
However, at partition, the improving co-tenant is entitled to a credit equal to any increase in value he caused.
Attendantly, at partition, the so-called “improver” bears full liability for any drop in value he caused.
right and duties of co-tenants
waste
A co-tenant must not commit waste.
*Recall 3 species of waste: voluntary (destruction), permissive (neglect), ameliorative (change to increase value)
right and duties of co-tenants
partition
A joint tenant or tenant in common has a right to bring an action for partition (break up plan: voluntary, partition in kind, forced sale)
