Concurrent Estates in Land

Question 1

Tenancy in Common

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

Question 2

Tenancy in common-Characteristics

Answer 2

• Freely transferable: each interest is freely descendible, devisable, and alienable
  -Co tenants interests can be transferred upon death
  -Rent: 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
• No survivorship rights: upon death of a co tenant, her interest does not pass by law to remaining co tenants
• Partition: a co tenant may seek judicial partition (i.e. division of property); if not feasible, property may be sold and proceeds apportioned among co tenants
• Modern law favors tenancy in common; it is the default concurrent estate

Question 3

Joint Tenancy-Creation

Answer 3

Four conditions must concurrently exist when the tenants take their interests:
1) Time: JTs must take their interests at the same time
2) Title: JTs must receive conveyance through the same instrument
3) Interest: JTs must take equal and identifical interests
4) Possession: JTs must have equal possessory rights
-Express intent required: grantor must expressly intend to create a JT; otherwise, a tenancy in common is presumed
-Right of survivorship: if one JT dies, surviving JTs automatically take equal possession of deceased JT’s share
-Transferability: alienable, but not devisable or descendible

Question 4

Joint tenancy-Severance and transfer of interests

Answer 4

• Severance: severance by any JT creates a tenancy in common with respect to the severed interest
• Transfer: a JT interest becomes a tenancy in common upon transfer; this does not destroy the entire JT if 2 or more JTs remain
• Mortgage: lien theory (majority) vs. title theory (minority)

Question 5

Lien theory

Answer 5

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

Question 6

Title theory

Answer 6

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

Question 7

Tenancy by the entirety

Answer 7

Marital estate, similar to JT, but between a married couple
* Creation: created by conveyance to a married couple and requires the same four conditions as a JT (time, title, interest, possession)
* Tenancy by the entirety is presumed in any conveyance made jointly to a married couple

Question 8

Tenancy by entirety-Characteristics

Answer 8

• Right of survivorship: property automatically passes to surviving spouse
• No right to convey or partition: one spouse may not unilaterally convey or partition her interest; attempt to do so is invalid and will not destroy the tenancy

Question 9

Tenancy by entirety-Severance

Answer 9

Three ways it can be severed, which creates a tenancy in common:
1) Death of one co tenant
2) Issuance of a divorce decree
3) Execution by a joint creditor (e.g. forceclosure

Question 10

Co Tenants Rights and Duties

Answer 10

1) Possession: each co tenant has rights to possess the whole
2) Rent and profits: a tenant is not required to pay rent or reimbirse co tenants for tenant’s use of land
-But each co tenant has a right to share in rents from third parties and profits derives from use of land that depletes its value (e.g. timber, oil, gas, mining, etc)
3) Adverse possession: tenant may not acquire title to the exclusion of co tenants through adverse possession unless the co tenants are ousted for the statutory period
4) Carrying costs: each tenant is responsible for his fair share of taxes, interest, etc.
5) Repairs: tenant may seek contribution from co tenants for reasonable repairs, but must inform co tenants before making repairs
6) Improvements: no right to contribution from co tenants for improvements, but tenant is entitiled to credit for an increase in value attributable to the improvement (and also liable for any resulting loss)
7) Waste: tenant can bring an action for waste against co tenants during the life of the tenancy
8) Partition/sale: co tenants may seek judicial partition; if property cannot be divided, permitted to sell and apportion the proceeds
-Co tenants can agree not to partition but only for a limited time (otherwise the agreement is void as a restraint on alienation