Concurrent estates

Question 1

3 forms of concurrent ownership

Answer 1

joint tenancy, tenancy by the entirety, tenancy in common

Question 2

joint tenancy

Answer 2

2 or more own w/right of survivorship

Question 3

tenancy by the entirety

Answer 3

between married partners w/right of survivorship

Question 4

tenancy in common

Answer 4

2 or more own w/NO right of survivorship

Question 5

right of survivorship

Answer 5

when a co-tenant dies, his share goes to the surviving co-tenant

Question 6

joint tenancy - distinguishing characteristics

Answer 6

1. Right of survivorship

2. Joint tenant’s interest is alienable (not devisable or descendible)

Question 7

joint tenancy - creation

Answer 7

1. 4 unities - TTIP (time, title, identical interest, possess the whole)
2. Grantor must clearly express the right of survivorship.
3. In addition to the 4 unities, grantor must clearly state the right of survivorship to create a joint tenancy.
4. Requires use of a straw.

Question 8

joint tenancy - use of straw for creation

Answer 8

1. D conveys to straw
2. Straw conveys back to D and P as joint tenants w/right of survivorship
   Now all 4 unities are present, including time and title

Question 9

joint tenancy - 4 unities (TTIP)

Answer 9

Time, Title, Identical interest, right to Possess the whole

Question 10

joint tenancy - severance

Answer 10

SPAM - Sale, Partition AND Mortgage

Question 11

joint tenancy - severance

sale - selling/transferring interest

Answer 11

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.

Question 12

joint tenancy - severance

sale - effect of act of entering into a K

Answer 12

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.

Question 13

joint tenancy - severance

partition

Answer 13

3 variations

1. voluntary agreement - peaceful way to end relationship
2. partition in kind - court action, if in the best interests of all, for physical division of property (good for sprawling acreage)
3. forced sale - court action, if in the best interests of all, to sell property and divide proceeds proportionally

Question 14

joint tenancy - severance

mortgage

Answer 14

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.

Question 15

tenancy by the entirety - creation

Answer 15

1. Between married partners w/right of survivorship
2. 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

Question 16

tenancy by the entirety - protection

Answer 16

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.

Question 17

tenancy in common - features

Answer 17

1. Each co-tenant owns an individual part and each has a right to possess the whole.
2. Each interest is d/d/a. There are no survivorship rights between TiC.
3. The presumption favors TiC since TiC doesn’t bypass probate

Question 18

right and duties of co-tenants

Answer 18

Possession, Rent from co-tenant in exclusive possession, Rent from 3rd parties, Adverse possession, Carrying costs, Repairs, Improvements, Waste, Partition

Question 19

right and duties of co-tenants

possession

Answer 19

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.

Question 20

right and duties of co-tenants

rent from co-tenant in exclusive possession

Answer 20

Absent ouster, a co-tenant in exclusive possession is NOT liable to the other for rent.

Question 21

right and duties of co-tenants

rent from 3rd parties

Answer 21

A co-tenant who leases all or part of the premises to a third party must ACCOUNT to his co-tenants

Question 22

right and duties of co-tenants

adverse possession

Answer 22

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

Question 23

right and duties of co-tenants

carrying costs

Answer 23

Each co-tenant is responsible for his fair share of carrying costs (taxes and mortgage interest payments) based upon his undivided share.

Question 24

right and duties of co-tenants

repairs

Answer 24

The repair co-tenant enjoys the right to CONTRIBUTION for necessary, reasonable repairs provided that he has told the other of the need.

Question 25

right and duties of co-tenants

improvements

Answer 25

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.

Question 26

right and duties of co-tenants

waste

Answer 26

A co-tenant must not commit waste.

*Recall 3 species of waste: voluntary (destruction), permissive (neglect), ameliorative (change to increase value)

Question 27

right and duties of co-tenants

partition

Answer 27

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)