Concurrent Estates

Question 1

Concurrent owners each have the right to use/possess _____ of the property

Answer 1

ALL of the property! Unless the contract out of this

Question 2

3 kinds of concurrent estates

Answer 2

1. Tenancy in Common (default)
2. Joint Tenants
3. Tenancy by the Entirety

Question 3

Tenancy in Common

Answer 3

Owners have separate (different) but undivided (not carved up) interests in the property

NO right of survivorship

Default interest - any conveyance to more than one person is presumed to be TIC unless explicitly otherwise

Question 4

Joint Tenancy

Answer 4

Right of survivorship - surviving joint tenant automatically takes the deceased tenant’s interest

Need CLEAR language and expression of intent

Also need 4 unities

Question 5

4 unities required for Joint Tenancy

Answer 5

Possession - equal right to possess the whole
Interest - equal shares
Time - receive interests at the same time
Title - must receive interests in the same instrument of title

If any is missing = TIC

Question 6

Lien theory

Answer 6

mortgage on a joint tenancy is treated as a lien and does NOT destroy the JT

Question 7

Title theory

Answer 7

Mortgage on a joint tenancy is treated as a transfer of title and DOES destroy the JT

(This is basically what PA says, though if ALL JT sign onto the mortgage than it doesnt destroy the unities and is OK)

Question 8

Tenancy by the Entirety

Answer 8

Joint tenancy between spouses with a right of survivorship

Only difference with JT is that the parties cannot alienate or encumber their shares without the consent of their spouse

NEED MAGIC WORDS

Question 9

Does one co-tenant owe the other a duty to pay rent?

Answer 9

NO - a co-tenant in possession is not required to pay rent to co-tenants out of possession

Question 10

Ouster

Answer 10

When the co-tenant in possession denies another co-tenant access to the property

Question 11

Remedies for ouster

Answer 11

1. Injunction granting access

2. Recover damages for value of the use while co-tenant was unable to access

Question 12

Income received from a rented property with co-tenants

Answer 12

Rent minus operating expenses (profit) are divided based on ownership intersts

Question 13

How are operating expenses divided among co-tenants?

Answer 13

NECESSARY charges (taxes or mortgage payments) are divided based on ownership interests

Question 14

3 things that track ownership interests

Answer 14

1. rental income
2. necessary operating expenses
3. proceeds from a partition sale

Question 15

Is there a right to reimbursement for necessary repairs among co-tenants?

Answer 15

NO - but tenant who makes repairs can get credit if they end up partitioning

Question 16

Is there a right to reimbursement for improvements among co-tenants?

Answer 16

NO but tenant who makes improvements can get credit if they end up partitioning

Question 17

Who has the unilateral right to partition?

Answer 17

TIC, JT

Question 18

Courts have a preference for what kind of partition?

Answer 18

Physical - partition in kind

Question 19

Courts will order a partition by sale if:

Answer 19

Physical partition is:

1. Not practical
2. OR not fair to all parties

Question 20

Can cotenants agree not to partition?

Answer 20

YES if:

1. agreement is clear
2. time limitation is reasonable