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concurrent estates Flashcards

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1
Q

3 forms of concurrent ownership

A

1) joint tenancy
2) tenancy by the entirety
3) tenancy in common

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2
Q

joint tenancy def

A

2 or more won with right of survivor ship

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3
Q

tenancy by the entirety def

A

b/w MARRIED partners with right of survivor ship

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4
Q

tenancy in common def

A

2 or more own with NO right of survivor ship

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5
Q

joint tenancy distinguishing characteristics

A

1) right of survivor ship: when 1 dies, share goes directly to surviving joint tenants
2) joint tenants is ALIENABLE, but NOT DIVISIBLE or DESCENDIBILE

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6
Q

how to create joint tenancy (4 unities T-TIP)

A

joint tenants must take their interests

1) T: same TIME
2) T: same TITLE (instrument)
3) I: identifiable interest
4) P: POSSESS as whole

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7
Q

must the grantor CLEARLY express the right of surviorship for joint tenancy

A

YES

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8
Q

why are joint tenancy disfavored

A

b/c avoids probate , thus in addition to 4 unities, grantor must clearly state RIGHT OF SURVIVOR SHIP

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9
Q

does IL need to use a straw man

A

NO

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10
Q

use of a strawman

A

to create joint tenancy o had to transfer to straw who would transfer it back to O and joint tenant with same instrument and right of surviorship language to create a valid J/T

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11
Q

acronym for SEVERANCE of a j/t

A

SPAM

1) Sale
2) Partition
3) And
4) Mortgage

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12
Q

can a j/t sell or transfer their interest during lifetime secretly?

A

YES. even w/o others knowledge or consent

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13
Q

what is a buyer of a j/t sale?

A

they are only tenants in common

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14
Q

What if there are more than 2 j/t and 1 sells right?

A

j/t remains in tact, as b/w the other non-transferring j/t

- buyer only becomes tenants by common

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15
Q

in equity what result will a j/t mere act of entering into K sale for her share do?

A

sever j/t as contracting parties interest under

1) doctrine of equitable conversion

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16
Q

3 different ways for severance with partition of j/t

A

1) voluntary agreement
2) partition in kind
3) partition of sale

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17
Q

partition in kind

A

court action PHYSICAL division of blackacre IF IN BEST INTEREST of ALL
- physically divide property

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18
Q

forced sale in j/t for severance and partition

A

court action if BEST INTEREST OF ALL where blackacre is SOLD and proceeds are distributed proprietorially

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19
Q

2 different theories for severance and mortgage of j/t

A

1) title theory

2) lien theory

20
Q

minority for severance and mortgage of j/t TITLE THEORY

A

1 J/T execution of a mortgage or a lien on his or her share WILL SEVER the j/t as to that encumbered share

21
Q

majority for severance and mortgage of j/t LIEN THEORY

A

whereby a j/y execution of a mortgage on his share WONT SEVER j/t

22
Q

does IL follow title theory or lien theory of severance of mortgage

A

LIEN THEORY

23
Q

Tenancy by the entirety how to create

A

b/w MARRIED COUPLES with right of survivor ship

24
Q

do most states that recognize the tenancy by the entirety, it arises a presumption?

A

YES at CL in any grant to married couples

25
Q

in IL do you need EXPRESS grant language to create tenants by entirety

A

YES must expressly state, unlike majority.

26
Q

what to remember by the co-ownership of tenants by the entirety (CANT TOUCH THIS)

A

very protective form of co-ownership

27
Q

can creditors of only 1 spouse touch the tenancy if tenants by the entirety

A

no

28
Q

under tenants by entirety can either tenant acting ALONE defeat right of survivor ship

A

NO. neither tenant acting alone can defeat the right of survivor ship by UNILATERAL transfer by 3rd party

29
Q

tenancy in common

A

1) each co-tenant owns AN INDIVIDUAL PART and each as a right to POSSESS THE WHOLE
2) each interest is DIVISIBILE, DESCENDIBILE AND ALIENABLE. no right of survivor ship
3) presumption favors tenancy in common

30
Q

is there any right of survivor ship in tenancy in common

A

NO

31
Q

Is the presumption in favor of tenancy in common

A

yes

32
Q

general rights and duties of co-tenants

A

1) possession
2) rent from co-tenant in exclusive possession
3) rent from third parties
4) adverse possession
5) carrying costs
6) repairs
7) improvements
8) waste (voluntary, permissive, ameliorative)
9) partition

33
Q

are each co-tenant entitled to possession of the whole

A

YES

34
Q

if one co-tenant wrongfully excludes another co-tenant from possession of whole or any part, he has committed what

A

WRONGFUL OUTSTER

- wrongful exclusion of another

35
Q

is rent from co-tenant in exclusive possession required

A

NO.

36
Q

absent ouster, a co-tenant in exclusive possession is not liable to other for rent

A

true

37
Q

does a co-tenant who leases all or part of the premises to a third party must account to co-tenant and give fair share of the rent income?

A

YES

38
Q

adverse possession: unless he has ousted the other co-tenant, one co-tenant in exclusive possession for the statutory adverse possession period cannot acquire exclusive title?

A

YES

- b/c not hostile and no outster

39
Q

carrying costs: is each co-tenant responsible for his or her fair share of CARRYING COSTS (such as taxes and mortgage interest payment) based upon UNDIVIDED SHARE

A

yes. ex: if M owes 90 % must pay 90 percent of share

40
Q

repairs: the repairing co-tenant enjoys what

A

right to CONTRIBUTION for REASONABLE NECESSARY REPAIRS

41
Q

when is a co-tenant allowed to enjoy right to contribution for reasonable necessary repairs

A

when they TOLD THE OTHER co-tenant of the need

42
Q

improvements: during the life of the co-tenancy is there a right to contribution for IMPROVEMENTS?

A

NO.

  • however, at partition the improving co-tenant is entitled to a CREDIT, equal to any increase in value she caused
  • if caused decreased in land, improver bears full liability for drop in value of what they caused
43
Q

3 wastes that co-tenant must not commit

A

1) voluntary: willful
2) permissive: neglect
3) ameloirative: increase in value w/o consent

44
Q

partition for j/t, tenancy in common

A

a j/t or tenant in common has a right to bring an action for partition

45
Q

in either a J/t or T/C does a claim agiainst 1 co-tenant bind the other/

A

No. a j/t or t/c may encumber her own interest, but may not encumber the other co-tenant;s interest. thus if a lien is attached to 1 co-tenant, it attaches only to that interest and not the others.

46
Q

Joint tenants and tenants in common rules for creditors on their interest

A

A joint tenant OR a tenant in common may encumber her own interest BUT MAY NOT ENCUMBER THE OTHER CO-tenants interest

47
Q

Can a joint tenants or a tenants in common encumber the other joint tenants or tenants in common interest in the land?

A

NO. May encumber own interest, but not encumber the other co-tenants interest.

bar real property (9 decks)

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