Concurrent Estates

Question 1

3 Types of Concurrent Estates

Answer 1

1. Tenancy in Common
2. Joint Tenancy
3. Tenancy by the Entirety

Question 2

what tenancy exists here:

O conveys Greenacre “to A and B”

Answer 2

Tenancy in Common

Question 3

what tenancy exists here:

O conveys Greenacre “to A and B as joint tenants with right of survivorship”

Answer 3

Joint Tenancy

Question 4

what tenancy exists here:

O conveys Greenacre “to A and B as tenants by the entirety”

Answer 4

Tenancy by the Entirety

Question 5

What is a tenancy in common?

Answer 5

two or more people have a possessory interest in the property at the same time

Question 6

Properties of a tenancy in common

Answer 6

1. Alienable
2. Descendible
3. Devisable

Question 7

Properties of a Joint Tenancy

Answer 7

1. Alienable

not descendible nor devisable

Question 8

What happens to alienated shares of a joint tenancy?

Answer 8

that share is no longer part of the joint tenancy and has no right of survivorship and consequently creates a tenancy in common

Question 9

Four Unities required by common law to create a joint tenancy

Answer 9

1. Time
2. Title
3. Interest
4. Possession

Question 10

Uniform Simultaneous Death Act

Answer 10

if every joint tenant dies at the same time, then every joint tenant survives the others. so the property is divided up among parties and gets transferred as a tenancy in common but only applies if there is no contractual agreement about what would happen upon death

Practice Pointer: add a simultaneous death clause to your will

Question 11

What is a tenancy by the entirety?

Answer 11

It’s like a joint tenancy but applies only to married couples.

Question 12

Properties of a Tenancy by the Entirety

Answer 12

cannot be severed unilaterally, but only ends through death, divorce, or agreement of both spouses

Question 13

Who recognizes tenancy by the entirety and what is the rule?

Answer 13

half of states (including TN)

Neither spouse may individually transfer or encumber his or her interest which shields assests from creditors

Question 14

Traditionally Common Law Approach

Answer 14

presumption in favor of joint tenancy over tenancy in common

Question 15

Modern Majority Rule

Answer 15

presumption in favor of tenancy in common over joint tenancy with requirement that a joint tenancy by express

Question 16

Modern Minority Rule (TN)

Answer 16

in favor of tenancy in common over joint tenancy but allowing for consideration of extrinsic evidence and adhering to transferor’s actual intent

Question 17

Alienation definition

Answer 17

Sell it

Question 18

Devise definition

Answer 18

transferred on death

Question 19

What is a partition?

Answer 19

a partition ends the co-tenancy and distributes assests among the owners

Question 20

Voluntary Partition

Answer 20

cotenants may agree to divide the property physically or to sell it and share the proceeds

Question 21

Involuntary of Judicial Partition

Answer 21

any tenant in common or joint tenant also has the right to sue to force a partition of the property

Question 22

Judicial Partition: Partition in Kind (Physical Partition)

Answer 22

a physical division of the property between the co tenants

Question 23

Judicial Partition: Partition by Sale

Answer 23

forced sale of the property with a subsequent division of the proceeds between the cotenants

Question 24

How to choose between partition in kind v. partition by sale?

Answer 24

consider the economic value, longstanding ownership, sentimental or emotional interests.

Question 25

Partition by Sale Factors

Answer 25

1. the property cannot be conveniently partitioned in kind
2. the interest of one or more of the parties will be promoted by the sale
3. the interest of the other parties will not be prejudiced by the sale