CONCURRENT ESTATES

Question 1

JOINT TENANCY

Answer 1

can be created between two or more co-tenants.
- has right of survivorship: when one joint tenant dies, the survivor(s) retain an undivided right in the property which is no longer subject to the interest of the deceased co-tenant.
4 unities are required to create a joint-tenancy:
1. time (vested at the same time)
2. title (acquired by the same instrument)
3. interest (interests of the same type and duration)
4. possession (interests give identical rights to enjoyment)

Question 2

SEVERANCE OF A JOINT TENANCY

Answer 2

SPAM
Severance and sale: may sell pr transfer her interest during her lifetime. Can be done without knowledge and consent of other tenants. The buyer is a tenant in common.
- in equity the mere act of entering into a contract for the sale of the portion will sever the joint tenancy as to that party’s interest (Doctrine of equitable conversion)
severance and partition:
1. by voluntary agreement: an allowable and peaceful way to end the relationship.
2. partition in kind: a judicial action for physical division of the property, if in the best interests of all the parties (farm of vineyard)
3. forced sale: a judicial action when, in the best interests of all the parties, the land is sold and the sale proceeds are divided proportionately
Severance and Mortgage:
1. One joint tenants execution of a mortgage or a lien on his pr her share will sever the joint tenancy as to that now encumbered share only in the minority states that follow the title theory of mortgages.
2. the majority states follow the lien theory of mortgages, whereby a joint tenant’s execution of a mortgage on his interest will not sever the joint tenancy

Question 3

TENANCY BY THE ENTIREITY

Answer 3

can be created only between two married partners who take as fictitious “one person” with the right of survivorship
Created:
some states: arises presumptively in any conveyance to marries partners
other states: grantor must clearly specify that the conveyance is to A and B as married partners, as tenants by the entirety
Protected: creditors of one spouse cannot touch the tenancy to satisfy a debt
Unilateral conveyance: one spouse acting alone cannot defeat the right of survivorship by unilaterally conveying to a third party

Question 4

TENANCY IN COMMON

Answer 4

1. Each co-tenant owns an individual part and each has a right to possess the whole
2. Each interest is devisable, descendible, and alienable
3. when in doubt the presumption favors the tenancy in common

Question 5

TENANCY IN COMMON- RIGHTS A DUTIES OF CO-TENANTS

Answer 5

1. possession: each co-tenant has the right to possess all portions of the property; no co-tenant has the right to exclusive possession of any part
2. Rents and profits: a co-tenant in possession has the right to retqain profits gained by her use of the property
   A co-tenant out of possession has a right to share in rents from third parties and in profits derived from a use of the land that reduces its value
3. Effect of one of the concurrent owners encumbering the property: can place a mortgage on her interest, but cannot encumber the other co-tenant’s interest- if tenancy in common is involved, the mortgage can only foreclose on the interest given by the co-tenant
4. Ouster: if one tenant wrongfully excludes another co-tenant from possession of the whole or any part of the whole there is an ouster and the ousted co-tenant is entitled to receive his share of the fair rental value of the property for the time he was wrongfully deprived possession
5. remedy of Partition: a joint tenant or tenant in common has a right to judicial partition either in kind or by sale and division of the proceeds
6. Expenses for preservation of property: equity courts will compel contribution between concurrent owners
   - Repairs: contribution may be compelled for necessary repairs- co-tenant who pays more than her pro rate share of the cost is entitled to contribution
   - improvements: no contribution or set off
   - taxes and mortgages: contribution can be compelled