Concurrent estates Flashcards
Three forms of co ownership
I. Joint tenancy: two or more own with the right of survivorship.
II. Tenancy by the entirety: between married partners with the right of survivorship
III. The tenancy in common: two or more own with no right of survivorship.
Joint tenancy characteristics and creation
a. Characteristic:
i. right of survivorship. if one joint tenant dies, his share goes to the surviving joint tenants.
ii. Joint tenants interest is alienable. NOT devisable or descendable. Because of the automatic right of survivorship.
b. Creation of a joint tenancy. Four unities “T-tip”
2. must take interests in
3. T: at same time
4. T: by the same title. in same deed, will, title
5. I: by identical interests
6. P: right to possess the whole
ii. Grantor must clearly express the right of survivorship
1. joint tenancies are disfavored. Because the holders get to avoid the system of probate, system likes probate bc comes with fees. Thus, in addition to the four unities, the grantor must clearly state the right of survivorship.
iii. Use of a straw
1. Ex. Dave holds Blackacre in fee simple absolute. He wishes to hold it as a joint tenant with his best friend Paul. How must Dave proceed?
a. To satisfy 4 unities dave must use a straw/ a middleman
i. Step 1: dave conveys to straw, like Dave’s lawyer
ii. Step 2: Straw conveys to Dave and Paul as joint tenants with the right of survivorship
iii. Thanks to straw, all four unities are present, including unities of time and instrument.
Joint tenancy severance
“SPAM”—Sale, partition and mortgage.
i. Severance and sale—joint tenant can sell or transfer interest during lifetime. sale severs the joint tenancy as to the seller’s interest.
1. The buyer is a tenant in common.
2. Seller can sell and sever secretly
4. To the extent we started with more than 2 joint tenants, the joint tenancy remains intact as between the other nontransferring joint tenants.
- Ex: OR conveys Blackacre “To Phoebe, Ross, and Monica as joint tenants with the right of survivorship.”
b. If phoebe sells her share to chandler, it severs the joint tenancy as to her interest. Ross and Monica still hold 2/3 as joint tenants, and Chandler holds 1/3 as their tenant in common.
d. Later, Ross dies, leaving behind his heir, Rachel. Monica takes Ross’ share
ii. Thus, Monica and Chandler are tenants in common. - a joint tenant’s mere act of entering into a k for the sale of her share will sever the joint tenancy as to that contracting party’s interest. (doctrine of equitable conversion– “equity regards as done that which ought to be done”)
b. Ex: O conveys Blackacre to “Ringo, Paul, and John as joint tenants with the right of survivorship.”
c. On January 1, Ringo enters into a contract for sale of his interest in the joint tenancy to George, with the closing to take place on April 1. Severance occured on jan 1 under equitable conversion.
ii. Severance through partition. 3 variations. happens when co-tenants are squablling.
1. Voluntary agreement: peaceful way to dissolve the relationship
2. Partition in kind: court action for physical division of blackacre if in best interest of all parties. works best if sprawling acreage, like farm or vineyard. physical division may be in best interests of all
3. Forced sale: court action if in the best interests of all where proceeds are divided proportionally. best if some acrimony and blackacre is building. Partition in kind doesn’t make sense.
iii. Severance and mortgage
1. Minority: “title theory” one jont tenants execution of a mortgage or lien on his share will sever the joint tenancy as to that now encumbered share. That joint tenant has transferred titled to the creditor. Equivalent to a sale to the creditor.
2. Majority of states follow the “lien theory” of mortgages. Joint tenants execution of mortgage won’t sever joint tenancy.
Tnancy by the entirety
recognized in 21 states
a. To create: only married partners with right of survivorship.
i. In most states that recognize tenancy by the entirety it arises presumptively: at common law in any grant to married partners.
ii. But by statute: some states demand clear statement: “to a and by tenants by the entirety.”
b. This is a very protected form of co-ownership.
i. Creditors of only one spouse cant touch this tenancy.
ii. Unilateral conveyance: neither tenant acting alone can defeat the right of survivorship by unilateral transfer to a 3rd party.
Tenancy in common 3 features
i. Each co-tenant owns: an individual part and each has a right to possess the whole
ii. Each interest is devisable, descendible, and alienable. Ther are NO survivorship rights between tenants in common
iii. The presumption favors the tenancy in common. Because the system likes when parties have to go to probate.
Rights and duties of co-tenants
i. Posession: Division is not permissible. each co-tenant is entitled to possess the whole. If one co-tenant wrongfully excludes another co-tenant from possession of whole or any part, he has committed ouster (wrongful ejection). Regardless of initial contribution amount.
ii. accounting of rents/profits/expenditures only required when:
1. ouster (party demanding accounting was ousted: refused possession after demand)
2. agreement: co-tenants agree otherwise
3. lease (must share net rents from third parties) rent from 3P lessee: Greg leases blackacre basement to Alice, he must share rent. Co-tenant must account to your co-tenants. Must give fair share of rent income (her contribution, or 10%).
4. depletion of natural resources (ex. mining, but not farming)
5. carrying costs (taxes, mortgage payments). fair share only .
6. repairs– necessary repairs only. fair share only PROVIDED she told other of need.
7. Waste (during life of cotennacy, can take action)– VAN (voluntary (destruction) , ameliorative (“improvements”), neglect)
NOT required for
vii. Improvements : M wallpapered den with posters of her idol. She now seeks contribution for improvements. During the life of the cotenancy there is no right for improvements. Property law recognizes one tenants improvement is anothers worse nightmare
2. However, at partition, improving co-tenant entitled to a credit equal to any increase in value she caused
3. Similarly, at partition, the “improver” bears full liability for any drop in value
iv. co-tenant cannot acquire title exclusively through adverse possession, because missing the hostility element. no hostility because no ouster.
ix. Partition: joint tenant or tenant in common always has right to bring an action for partition.
