Concurrent Estates

Question 1

What are the distinguishing characteristics of a joint tenancy?

Answer 1

Joint tenants have the right of surviviorship. The interests are alienable but NOT devisable or descendible. The last surviving joint tenant gets everything.

Question 2

How is a joint tenancy created?

Answer 2

When the four unities are present
Grantor expressly grants the right of survivorship, and
A straw is used (not necessary in NY)

Question 3

Can a joint tenancy be created without a clear expression of the right to survivorship by the grantor?

Answer 3

No.

Question 4

What are the four unities?

Answer 4

Joint tenants must take their interests

1. at the same time
2. by the same title
3. with identical interests
4. with the right to possess the whole

Question 5

How is a straw used to create a joint tenancy?

Answer 5

O holds Blackacre in fee simple absolute, but wants Joint Tenancy with P.
Step 1: O conveys Blackacre to straw
Step 2: Straw conveys Blackacre to O and P as joint tenants with the right of survivorship

Question 6

Can you create a joint tenancy without a straw?

Answer 6

Common law: No

New York: YES! Perfectly okay for O to convey to O and P with the right of survivorship.

Question 7

What are the ways a joint tenancy can be severed?

Answer 7

1. Sale or transfer of an interest
2. Partiton (voluntary agreement)
3. Mortgage (in a title theory jurisdiction)

Question 8

A, B, and C own Blackacre as joint tenants. A secretly transfers her interest to D. What happens?

Answer 8

A has the joint tenancy as to her interest.
B & C are still joint tenants, each with 1/3 ownership.
D is a tenant in common with 1/3 ownership.

Question 9

What is the doctrine of equitable conversion?

Answer 9

Equity regards as done that which ought to be done. A joint tenant’s act of entering into a contract, even if the deal falls though before closing, will sever her interest.

Question 10

What are the three ways a joint tenancy can be severed by partition?

Answer 10

1. By voluntary agreement
2. Partition in kind: court determines it’s in everyone’s best interest that the property be divided up.
3. Forced sale: court determines it’s in everyone’s best interest that the property be sold, and the proceeds divided up.

Question 11

A, B, and C are joint tenants. A puts a mortgage on her interest. What result in a title theory jurisdiction?

Answer 11

A’s interest is severed from the joint tenancy.

Question 12

A, B, and C are joint tenants. A puts a mortgage on her interest. What result in a lien theory jurisdiction (i.e. NY!!)?

Answer 12

A’s interest as a joint tenant is intact.

Question 13

When does a tenancy by the entirety arise?

Answer 13

Presumptively when conveyed to married persons, unless expressly stated otherwise. The married partners have the right of survivorship.

Question 14

Can creditors of one spouse forclose on a property that is held as a tenancy by the entirety?

Answer 14

No. In NY, one spouse can mortgage their interest, and the creditors can collect on that interest, so long as it doesn’t interfere with the other spouse’s right of survivorship.

Question 15

What is the right of survivorship?

Answer 15

The last surviving tenant gets title to the entire property.

Question 16

May a party to a tenancy by the entirety unilaterally transfer their interest?

Answer 16

No. Unilateral transfers are void in tenancy by the entirety properties.

Question 17

What is a tenancy in common?

Answer 17

Each co-tenant owns an individual part, and all co-tenants have the right to possession of the whole.

Each interest is devisable, descendible, and alienable, and there is no right of survivorship between tenants.

Question 18

What are a co-tenant’s duties regarding possession?

Answer 18

Co-tenants are entitled to possession of the whole and have a duty to not exclude co-tenants.

Question 19

What happens if one tenant bars his co-tenant from access to any part of the property?

Answer 19

This is called wrongful ouster.

Question 20

What are the co-tenants’ duties regarding rent from a co-tenant in exclusive possession?

Answer 20

Co-tenants may not collect rent from a co-tenant who happens to be in exclusive possession of the property.

Question 21

What are co-tenants’ rights with regard to rent from a third party?

Answer 21

Co-tenants are entitled to their fair share of the rent income. Fair share is determined by the % they put in to acquire the property.

Question 22

Can a co-tenant ever acquire the property by adverse possession?

Answer 22

Common law: No, missing hostility element.

New York: Yes - after 20 continuous years of exclusive possession (implied ouster)

Question 23

How much of the carrying costs does each co-tenant have to pay?

Answer 23

Their fair share (% based on how much they put in to acquire the property) of taxes and mortgage interest payments.

Question 24

Can a co-tenant compel contribution from the other(s) for repairs?

Answer 24

Yes - if they are necessary and she has notified the others. The tenants must each contribute their fair share.

Question 25

Can a co-tenant compel contribution from the other(s) for improvements to the property?

Answer 25

No.
But at partition, unilaterally improving co-tenant is entitled to a credit = the value added by her improvement or is liable for any drop in value because of her “improvement.”

Question 26

When can a co-tenant bring a waste action against another co-tenant?

Answer 26

Any time - even during the life of the co-tenancy.

Question 27

What are co-tenants’ rights with respect to partition.

Answer 27

Co-tenants always have the right to bring an action for partition.