Concurrent Estates

Question 1

What are the forms of concurrent ownership?

Answer 1

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

Question 2

What are the characteristics of a joint tenancy with right of survivorship?

Answer 2

• Right of survivorship means last living joint tenant solely owns the property
• not devisable or descendable, but alienable

Question 3

How does one create a joint tenancy with right of survivorship?

Answer 3

Four unities:
• time
• title (by same instrument)
• interests (identical)
•possession (right to possess the whole)
Grantor must also clearly express right of survivorship.

Question 4

How may a joint tenancy be severed?

Answer 4

• severance and sale
• partition
• mortgage

Question 5

In equity, entering a contract to sell a joint tenant’s share has what effect?

Answer 5

Severs the joint tenancy, because under equitable conversion, equity regards as done that which ought to be done.

Question 6

What are the three ways a joint tenancy can be partitioned?

Answer 6

(1) voluntary agreement
(2) action for partition in kind (division of the land in best interests of all parties)
(3) forced sale (land sold and proceeds divided proportionally)

Question 7

What are the lien theory and title theory rules regarding joint tenancy severance by mortgage?

Answer 7

• Title (minority) theory: a party’s mortgage severs the joint tenancy regarding the encumbered share
• Lien (majority) theory: the mortgage over a joint tenant’s interest will not sever the joint tenancy

Question 8

What is a tenancy by the entirety?

Answer 8

An ownership interest between married partners who have a right of survivorship.

Question 9

When does a tenancy by the entirety presumptively arise?

Answer 9

In recognizing states, in any conveyance to married parties, unless stated otherwise.

Question 10

Can creditors of only one spouse touch the tenancy by the entirety?

Answer 10

no

Question 11

Can a spouse unilaterally transfer his interest in a tenancy by the entirety to another?

Answer 11

no

Question 12

What are the 3 features of a tenancy in common?

Answer 12

(1) each co-tenant owns an individual part and has a right to possess the whole
(2) each interest is devisable, descendable, and alienable, with no survivorship rights
(3) the presumption favors the tenancy in common

Question 13

How much of the property is a co-tenant allowed to posses?

Answer 13

the whole

Question 14

What is wrongful ouster?

Answer 14

When a co-tenant wrongfully excludes another co-tenant from possession of the whole or any part.

Question 15

Absent ouster, is a co-tenant in exclusive possession of the property liable to the others for rent?

Answer 15

no

Question 16

When a co-tenant leases all or part of the premises to a third party, what must he pay to the other co-tenants?

Answer 16

Their fair share of the rental income

Question 17

What are carrying costs (costs which each co-tenant is liable for), and what are they based upon?

Answer 17

taxes and mortgage interest payments based on the party’s undivided share

Question 18

When may a co-tenant recover from the other co-tenants for repairs? How are repair costs allocated among co-tenants?

Answer 18

When she has first told the others of the need. Repair costs are allocated by ownership proportion in the property.

Question 19

Is there a right to contribution from co-tenants for improvements? Is there any other way a co-tenant may make money from the improvements

Answer 19

There is no right to contribution from co-tenants for improvements. But at partition, the improving co-tenant can get a credit for any increase in value due to her efforts

Question 20

At partition, does a co-tenant bear liability for drop in the property value by her efforts to improve?

Answer 20

yes, she is fully liable

Question 21

May a co-tenant be liable for waste?

Answer 21

yes