Concurrent Estates

Question 1

What is the basic rule in regards to concurrent owners occupying the land?

What’s the exception?

Answer 1

Concurrent owners each have a right to use/possess the whole property.

Exception: concurrent owners can contract out of the basic rule

Question 2

What are the three kinds of concurrent ownership/concurrent estate?

Answer 2

Tenancy in common

Joint tenancy

Tenancy by entirety

Question 3

What is the default concurrent interest?

Answer 3

Tenancy in common

Question 4

What Rights does a TIC?

Answer 4

• concurrent owners have separate but undivided interest in the property.
• no right of survivorship

Question 5

How do you create a joint tenancy?

Answer 5

• grantor must make a clear expression of intent, plus

* must have survivorship language

Question 6

What are the four unities of a joint tenancy?

T-TIP

Answer 6

• Time- joint tenants must receive their interest at the same time.
• Title- . Tenants must receive their interest in the same type of title.
• Interest- joint tenants must have an equal share of the same type of interest.
• Possession- requires every joint tenant have an equal right to possess the whole of the property

Question 7

How is a joint tenancy severed?

Answer 7

If any of the unities are severed (destroyed), then the joint tenancy is terminated and it turns into a TIC

Question 8

What are the three common situation to severe the joint tenancy?

Answer 8

• Inter vivos transfer: transferred during life will destroy the right of survivorship and convert the estate into a TIC
• mortgages: A joint tenancy grants the mortgage interest in a joint Tenancy to a creditor.
• Lease: A joint tenant leases her share of the property to a tenant. (Split)

Question 9

What is the lien theory?

Answer 9

Majority view- The mortgage is treated as a lien is not destroy the joint tenancy.

Question 10

What is the title theory?

Answer 10

Minority view – The mortgage severs title and the Tenancy between the joint tenants in creditor is converted into a tenancy in common.

Question 11

What is a tenancy by the entirety?

Answer 11

Joint Tenancy between married spouses.

Question 12

How is a tenancy by the entirety created?

Answer 12

Same Utilities as a JT plus marriage.

Cannot alienate or encumber this year without the consent of their spouse.

Question 13

What are co-tenants rights to receive rent?

Answer 13

Rent received from a third-party’s possession of the property, minus operating expenses, Are divided based on ownership interest of each cotenant.

Question 14

How are operating expenses divided among co-tenants?

Answer 14

• divided based on ownership interest of each Co-tenant
• A co-tenant can collect contributions from the other co-tenant for payments in excess of her share of operating expenses.

Question 15

How are repairs reimbursement divided amongst cotenants?

Answer 15

• There is no rights to reimbursements from cotenants for necessary repairs.
• however, the cotenant who makes the repairs can get credit in a partition action.

Question 16

How are improvements reimbursed Amongst cotenants?

Answer 16

• There is no right to reimbursements for improvements.

* However, the cotenant who makes improvements can get credit in a partition action.

Question 17

What is a partition cause of action?

Answer 17

And equitable remedy available to all holders of a TIC or a JT.

Question 18

What are the effects of a partition action?

Answer 18

The court will divide the property into distinct portions.

Question 19

What is partition in kind?

Answer 19

A physical division of property. (Courts preference).

Question 20

When will Court’s order a partition by sale?

Answer 20

1. If the physical partition is not practical

2. Not fair to all parties.

Question 21

Can co-tenants agree not to partition?

Answer 21

Yes

Agreement is enforceable provided that the agreement is clear and time limitation is reasonable.