Concurrent Estates in Land

Question 1

Concurrent Estates in Land: 3 Types

Answer 1

1) Tenancy in common (TIC)
2) Joint tenancy (JT)
3) Tenancy by the entireties (TBE)

Question 2

TIC: Definition

Answer 2

Estate with multiple tenants in which each co-tenant owns a distinct, undivided interest and each has a right to possession of the whole estate

• Modern law favors; it is the default concurrent estate

Question 3

TIC: Rent

Answer 3

A co-tenant can lease his individual interest, which transfers his right of possession to lessee, but co-tenants have a right to share in rents from third-party lessee

Question 4

TIC: Partition

Answer 4

A co-tenant may seek judicial partition; if not feasible, property may be sold and proceeds apportioned among co-tenants

Question 5

JT: Creation

Answer 5

4 conditions must concurrently exist when the tenants take their interests:

1) time
2) title
3) interest
4) possession

• EXPRESS INTENT required!

Question 6

JT: Time

Answer 6

JTs must take their interests at the same time

Question 7

JT: Title

Answer 7

JTs must receive conveyance through the same instrument

Question 8

JT: Interest

Answer 8

JTs must take equal and identical interests

Question 9

JT: Possession

Answer 9

JTs must have equal possessory rights

Question 10

JT: Mortgage Lien Theory

Answer 10

JT can take a mortgage on her interest without severing JT because no title passes to mortgagee

• MAJORITY view

Question 11

JT: Mortgage Title Theory

Answer 11

JT is severed if any JT takes a mortgage on her interest because title passes to the mortgagee

• Minority view

Question 12

TBE: Creation

Answer 12

Created by conveyance to a married couple

• Requires same unities as JT
• PRESUMED in any conveyance made to a jointly married couple

Question 13

TBE: No right to convey or partition

Answer 13

One spouse may not unilaterally convey or partition her interest; attempt to do so is invalid and will not destroy the tenancy

Question 14

TBE: Protected from creditors

Answer 14

Creditors of one spouse cannot reach that spouse’s interest; only creditors of the couple (i.e. joint creditors) can reach a TBE

Question 15

TBE: Severance (3 ways)

Answer 15

Any of these creates a TIC:

1) Death of one co-tenant
2) Issuance of a divorce decree
3) Execution by a joint creditor (e.g. fx)

Question 16

Co-Tenants’ Rights & Duties: Rent & Profits

Answer 16

A tenant is not required to pay rent or reimburse co-tenants for tenant’s use of land; however, each co-tenant has a right to share in rents from third parties and profits derived from use of land that depletes its value (e.g. timber, oil, gas, mining, etc.)

Question 17

Co-Tenants’ Rights & Duties: Adverse Possession (AP)

Answer 17

Tenant may not acquire title to the exclusion of co-tenants through AP unless the co-tenants are OUSTED for the statutory period

Question 18

Co-Tenants’ Rights & Duties: Partition/Sale

Answer 18

Co-tenants can agree NOT to partition, but only for a limited time (otherwise the agreement is void as a restraint on alienation)