Concurrent Estates

Question 1

Joint Tenancy Characteristics

Answer 1

Right of survivorship - when one JT dies his share passes automatically to the surviving JT

Interests is alieanable (not devisable or descendible)

Question 2

Creation of Joint Tenancy

Answer 2

4 Unities:

time

title

interest

right to possess

and - grantor must clearly express the right of survivorship

strawman may be required for 4 unities, but not in NY

Question 3

Severance of a Joint Tenancy

Answer 3

Sale

• can be done, even secretly, but will destroy 4 unities and make buyer TIC.
• equitable conversion doctrine (contract severs)

Partition

• in kind: ct action for physical divisionif in best interests
• forced sale: ct action for sale if in best interests

Mortgage:

• Title theory: mortgage or lien will sever JT
• Lien theory: will not sever JT (Maj. of states includng NY)

Question 4

Tenancy by the Entirety creation

Answer 4

Arises presumptively when granting to husband and wife, unless stated otherwise

right of survivorship

Question 5

Tenancy by the Entirety and Unilateral Conveyance

Answer 5

neither tenant, acting alone, can defeat teh right of survivorship by unilateral conveyance (including to creditors)

New York:one spouse may mortgage his interest and his creditors may enforce that interest, only as to the debtor’s spouse’s share. Non-debtor’s spouse’s rights, including the right of survivorship, must not be compromised. Can only be terminated by voluntary partition, conveyance signed by both parties, or by divorce.

Question 6

termination of tenancy by the entirety

Answer 6

right of survivorship may be severed by death, divorce, mutual agreement or execution by a joint creditor

canot be terminated by involuntary partition

Question 7

Tenancy in Common

Answer 7

no right of survivorship (each interest is devisable, descendible and alienable)

presumption favors TIC

each is entitled to possession of the whole

Question 8

Rights and Duties of Co-tenants

Answer 8

1. possession of whole
2. rent from co-tenant in exclusive possession
3. rent from third parties
4. cannot acquire via AP without ousting
5. carrying costs based on share
6. repairs absed on share
7. no right to contribution for improvement - but at partition the improving co-tenant is entitled to a credit equal to increase in value (or drop)
8. cannot commit waste
9. right to bring partition action