Concurrent Estates in Land

Question 1

Tenancy in Common - Definition

Answer 1

An 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 TiC = Default concurrent estate

Question 2

Tenancy in Common - Characteristics (Freely Transferable)

Answer 2

Each interest is freely descendible, devisable, and alienable

• Co tenant interests can be transferred upon death

Question 3

Tenancy in Common - Characteristics (Rent)

Answer 3

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

Question 4

Tenancy in Common - Characteristics (No survivorship rights)

Answer 4

Upon death of a cotenant, her interest does not pass by law to remaining cotenants

Question 5

Tenancy in Common - Characteristics (Partition)

Answer 5

A cotenant may seek judicial partition (i.e. division of property); if not feasible, property may be sold and proceeds apportioned among cotenants

Question 6

Joint Tenancy - Creation Anagram (4)

Answer 6

T - TIP

T: Time
T: Title
I: Interest
P: Possession

Question 7

Joint Tenancy - Creation (Time)

Answer 7

JTs must take their interests at the same time

Question 8

Joint Tenancy - Creation (Title)

Answer 8

JTs must receive conveyance through the same instrument

Question 9

Joint Tenancy - Creation (Interest)

Answer 9

JTs must take equal an identical interests

Question 10

Joint Tenancy - Creation (Possession)

Answer 10

JTs must have equal possessory rights

Question 11

Joint Tenancy - Creation (Possession - Express Intent Required)

Answer 11

Grantor must expressly intend to create a JT; otherwise, a tenancy in common is presumed

Question 12

Joint Tenancy - Creation (Possession - Right of Survivorship)

Answer 12

If one JT dies, surviving JTs automatically take equal possession of deceased Jt’s share

Question 13

Joint Tenancy - Creation (Possession - Transferability)

Answer 13

Alienable, but not devisable or descendible

Question 14

Joint Tenancy - Severance

Answer 14

Severance by any JT creates a tenancy in common with respect to the severed interest

Question 15

Joint Tenancy - Transfer

Answer 15

A JT interest becomes a tenancy in common upon transfer; this does not destroy the entire JT if two or more JTs remain

Question 16

Joint Tenancy - Mortgage (Lien Theory Jx)

Answer 16

JT can take a mortgage on her interest without severing JT (b/c no title passes to mortgagee)

Question 17

Joint Tenancy - Mortgage (Title Theory Jx)

Answer 17

JT is severed if any JT takes a mortgagee on her interest b/c title passes to the mortgagee

Question 18

Tenancy by the Entirety - Definition

Answer 18

Marital estate, similar to JT, but between a married couple

• Tenancy by the entirety is presumed in any conveyance made jointly to a married couple

Question 19

Tenancy by the Entirety - Creation

Answer 19

Created by conveyance to a married couple and requires the same four conditions as a JT (time, title, interest, possession)

Question 20

Tenancy by the Entirety - Creation

Answer 20

Created by conveyance to a married couple and requires the same four conditions as a JT (time, title, interest, possession)

Question 21

Tenancy by the Entirety - Characteristics (Right of Survivorship)

Answer 21

Properly automatically passes to surviving spouse

Question 22

Tenancy by the Entirety - Characteristics (No right to convey or partition)

Answer 22

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

Question 23

Tenancy by the Entirety - Characteristics (Protected from Creditors)

Answer 23

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

Question 24

Tenancy by the Entirety - Severance (3)

Answer 24

Three ways a tenancy by the entirety can be severed, which creates a tenancy in common:

a) Death of one cotenant
b) Issuance of a divorce decree
c) Execution by a joint creditor (e.g. foreclosure)

Question 25

Co-Tenants' Rights & Duties - Possession

Answer 25

Each co-tenant has rights to possess the whole

Question 26

Co-Tenants' Rights & Duties - Rent and Profits

Answer 26

A tenant is not required to pay rent or reimburse co-tenants for tenant's use of land - But each co-tenant has a right to share in rents from 3rd parties and profits derived from use of land that depletes its value (e.g. timber, oil and gas, mining, etc.)

Question 27

Co-Tenants' Rights & Duties - Adverse Possession

Answer 27

Tenant may not acquire title to the exclusion of co-tenants through adverse possession unless the cotenants are ousted for the statutory period

Question 28

Co-Tenants' Rights & Duties - Carrying Costs

Answer 28

Each tenant is responsible for his fair share of taxes, interest, etc.

Question 29

Co-Tenants' Rights & Duties - Repairs

Answer 29

Tenant may seek contribution from co-tenants for reasonable repairs, but must inform cotenants before making repairs

Question 30

Co-Tenants' Rights & Duties - Improvements

Answer 30

No right to contribution from cotenants for improvements; but tenant is entitled to credit for an increase in value attributable to the improvement (and also liable for any resulting loss)

Question 31

Co-Tenants' Rights & Duties - Waste

Answer 31

Tenant can bring an action for waste against cotenants during the life of the tenancy

Question 32

Co-Tenants' Rights & Duties - Partition/sale

Answer 32

Cotenants may seek judicial partition; if property cannot be divided, permitted to sell and apportion the proceeds - Cotenants can agree not to partition, but only for a limited time (otherwise the agreement is void as a restraint on alienation)