Concurrent estates

Question 1

Basic rule

Answer 1

Concurrent owners each have the right to use or possess the whole property, unless they have contracted otherwise.

Question 2

Tenancy in common

Answer 2

The default concurrent interest, and any conveyance to more than one person is presumed to be a tenancy in common.

There is no right of survivorship, and each co-tenant can freely transfer the property inter vivos or at death.

Question 3

Ouster

Answer 3

Denial by the co-tenant in possession of another co-tenant’s access to the property.

Remedies for the ousted tenant: an injunction granting access and/or damages for the value of the use during ouster.

Question 4

Rights to third-party rents

Answer 4

Rent received from a third-party’s possession of the property, less operating expenses, are divided among co-tenants in proportion to their interests.

Question 5

Responsibility for operating expenses

Answer 5

Necessary charges, e.g., taxes and mortgage interest payments, are divided in proportion to ownership interests.

A co-tenant can collect contribution from other co-tenants should she pay more than her pro rata share.

A co-tenant in sole possession can collect only for the amount that exceeds the rental value of the property.

Question 6

Responsibility for repairs

Answer 6

There is no right to reimbursement for necessary repairs, although the co-tenant who makes the repairs can receive credit in a partition action.

Question 7

Responsibility for improvements

Answer 7

There is no right to reimbursement for improvements, although the co-tenant who makes the improvements can receive credit in a partition action.

Question 8

Partition

Answer 8

Partition is an equitable remedy available to all holders of a tenancy in common or a joint tenancy, unless co-tenants have clearly agreed not to do so and for a reasonable time limitation.

Courts prefer physical division but will order a partition by sale if:

(1) Physical partition is not practical, e.g., in the partition of a condo unit, or;
(2) Physical partition is not fair to all parties.

Proceeds from a sale are divided pro rata by ownership interest.

Question 9

Tenancy in common: transfer by lease

Answer 9

An individual tenant in common may unilaterally transfer his or her undivided interest by a lease for a term of years.

The tenant obtains only the transferor’s concurrent right of possession with the other tenants in common.

Question 10

Duties owed to co-tenants

Answer 10

Although co-tenants owe a duty of fair dealing to each other, co-tenants generally do not owe fiduciary duties to each other.

But a fiduciary obligation can be imposed on co-tenants who jointly purchase the property in reliance on each other or acquire their interests at the same time from a common source, such as by gift, will, or inheritance:

• Typically, these co-tenants will be related or in a confidential relationship.
• The primary situation in which such a co-tenant is found to have a fiduciary obligation arises when the property is sold at a tax or mortgage foreclosure sale and a co-tenant acquires the property. They can repurchase their interests based on the amount that the purchasing co-tenant paid to acquire the property.

Question 11

Rights to business profits

Answer 11

A co-tenant is generally not required to share profits with any of the other co-tenants profits from a business that the co-tenant runs on the property.