Concurrent Estates in Land

Question 1

What is a concurrent estate?

Answer 1

an estate in land that can be held concurrently by several persons, all of whom have the right to enjoyment and possession of the land

Question 2

What are the different types of concurrent estates?

Answer 2

Joint Tenancy, Tenancy in Common, and Tenancy by the Entirety

Question 3

What is the distinguishing features of a Joint Tenancy?

Answer 3

Right of Survivorship

Question 4

What does “right of survivorship” mean?

Answer 4

When one of the joint tenant dies, the surviving joint tenant(s) take equal possession of that join tenant’s interest (her survivors do not succeed to it)

Question 5

How is a Joint Tenancy created?

Answer 5

Common law requires four unities: time, title, interest, and possession; the interests must be equal in every way, the interests must be taken at the same time, by the same instrument, and with the same right to possession (equal shares)

Question 6

If there are three joint tenants, what are their shares?

Answer 6

Each has 1/3 interest

Question 7

A conveyance to two or more persons is presumed to be a tenancy in common unless:

Answer 7

there is a clear expression of a right of survivorship - then it will be a joint tenancy

Question 8

Is a joint tenant’s interest transferable?

Answer 8

It is alienable, but not devisable or descendible

Question 9

How can a ROS be severed (terminated) in a Joint Tenancy?

Answer 9

If a ROS is severed, the estate converts into a Tenancy in Common. Severance occurs by: (1) conveyance of one JT; (2) agreement of JTs; (3) murder of co-T by another; or (4) simultaneous deaths of co-Ts. A JT can also be terminated by partition (voluntary or involuntary).

Question 10

What happens if a joint tenant conveys her undivided interest (voluntarily or involuntarily)?

Answer 10

This destroys the joint tenancy with respect to the transferee. The transferee takes it as a tenant in common. If there are two or more remaining joint tenants, they keep their joint tenancy intact.

Question 11

What is a Tenancy by the Entirety?

Answer 11

a marital estate akin to a joint tenancy (we presume TE if estate between spouses)

Question 12

In a Tenancy by the Entirety, do the spouses have equal interests and ROS?

Answer 12

Yes, undivided and ROS.

Question 13

How is a Tenancy by the Entirety terminated?

Answer 13

The TE ROS is terminated by (1) death; (2) divorce; (3) mutual agreement; or (4) execution by joint creditor. NOTE: tenancy by entirety cannot be terminated by involuntary partition.

Question 14

Can an individual spouse convey or encumber the tenancy by the entirety?

Answer 14

No. A deed or mortgage executed by one spouse is ineffective.

Question 15

What is a Tenancy in Common?

Answer 15

a concurrent estate with NO ROS wherein each tenant has a distinct, proportionate, undivided interest in the property.

Question 16

What kind of unity is required for a Tenancy in Common?

Answer 16

only unity in possession

Question 17

How do you terminate a Tenancy in Common?

Answer 17

by partition

Question 18

Can tenants in common transfer their interests?

Answer 18

yes, interests are alienable, devisable, and inheritable. But note that each tenant can hold a different interest in the property.

Question 19

What are the rights of co-tenants with respect to possession?

Answer 19

each co-T has right to possess all portions of the property, but no right to exclusive possession of any part. A co-T out of possession cannot bring a possessory action unless she is “ousted” (another co-T claims right to exclusive possession)

Question 20

What are the rights of co-tenants with respect to rents and profits?

Answer 20

co-T in possession has right to retain profits from her own use of the property (does not need to share the profits with the others absent ouster or agreement to contrary). But she has to share net rents from third parties and net profits gained from exploitations of land (mining)

Question 21

Can a joint tenant or tenant in common encumber their interest? (by mortgage or judg. lien)

Answer 21

Yes, but cannot encumber the interests of the co-Ts. If one tenant in common mortgages her interest, mortgagee can foreclose only on that interest. If a joint tenancy is involved, a mortgage or lien does not sever the JT, but foreclosure sale will.

Question 22

What is a remedy by partition?

Answer 22

any co-T has right to judicial partition (in kind = physical division of land or by sale and division of proceeds). Courts prefer in kind.

Question 23

Is a co-tenant entitled to contribution from other co-tenants when she pays more than her pro rata share for necessary repairs?

Answer 23

Yes, provided she notified the others of the need for repairs.

Question 24

Is there a right of contribution for improvements?

Answer 24

No, unless there is a partition. Co-T cannot compel contribution for improvements from out-of-possession co-Ts. But if T in possession has been collecting rent, they may deduct cost from rent they are required to pay other co-Ts.

Question 25

Can contribution be compelled for taxes/mortgage payments on entire property?

Answer 25

Yes. But reimbursement to a co-T in sole possession is limited to the extent that expenditures exceed the rental value of her use.