Concurrent Estates in Land

Question 1

Types of Tenancys

Answer 1

1. Joint Tenancy
2. Tencancy in Common
3. Tenancy in the Entirety

Question 2

Joint Tenancy - the 4 Unities

Answer 2

4 unities must be present at the outset

1. Time
2. Title
3. Interest
4. Possession

Question 3

Creation of a JT

Answer 3

• language of conveyance must clearly reflect the intent of the Grantor to create a JT
  
  • if intent is unclear, courts will presume a Tenancy in Common was created
• Language to look for:
  
  • “as joint tenants, with rights of survivorship”
• The right of survivorship must be expressly stated in the grant

Question 4

The Joint Tenancy Right of Survivorship

Answer 4

• surviving JTs take automatically upon the death of the JT
• if holder wants to be relieived of his interest he can by asking the property be partitioned
  
  • party seeking partitioning will own his interest outright

Question 5

Severance

Answer 5

• Refers to the involuntary termination of the JT
• Severance occurs when any of the 4 unities is disturbed
• JT cannot be severed by Will

Question 6

Ways of Severance

Answer 6

1. Sale
2. Mortgage
3. Contract of Sale
4. Creditor’s Sale

Question 7

Mortgage and Severance: Lien & Title Theory

Answer 7

• Majority follows Lien theory which says there is no Severance of JT
  
  • when the mortgage is executed, the lien attaches to title, but the title is not transferred
• Minority follows the Title theory of mortgages which says that there is a severance of a JT when the mortgage is granted
  
  • When mortgage is executed, title passes from mortgagor to mortgagee even though title goes back to mortgagor when mortgage is satisfied

Question 8

Severence at Contract of Sale: Doctrine of Equitable Conversion

Answer 8

Severance occurs on the date the valid contract sale was signed - because of the doctrine of equitable conversion

Question 9

Creditor’s Sale and JT

Answer 9

Under majority view, there is no severance until judicial sale actually takes place

Question 10

Tenancy in Common

Answer 10

• No unities requied except Possession
  
  • which means each tenant is entitled to possess the whole property
• Modern presumptiom in favor in a tenancy in common
• This estate is freely alienable
• Any tenant in common can force partition
• No right of survivorship

Question 11

Tenancy in the Entirety

Answer 11

• The 4 unities are required + marriage
• At common law, any grant of concurrent estate to husband and wife is a tenancy in the entirety as long as the 4 unities are met
• At common law, there is a right to survivorship
• At common law, there is no right to partition
  
  • Thus tenancy in the entirety is not severable by unilateral action

Question 12

Termination of Tenancy by the Entirety

Answer 12

• Death
• Mutual Agreement in writing
• Divorce
• Execution by a Joint Creditor

Question 13

Co-Tenancy Issues:

Answer 13

1. Possession
2. Accountability
3. Contribution

Question 14

Co-Tenancy & Possession

Answer 14

Co-Tenant has the right to possess the whole property, consistent with the same right in every other co-tenant

Question 15

Co-Tenancy & Accountability Rule

Answer 15

One Co-Tenant does not have to account to another Co-Tenant for his share of the profits, subject to 4 exceptions.

Question 16

Exceptions to the rule for Accounting and Co-Tenancy:

When does onne Co-Tenant have to account to another Co-Tenant for his share of the profits?

Answer 16

1. Ouster
   
   • accounting is required if one co-tenant is either keeping a co-tenant off the property or claiming a right of exclusive possession
2. Agreement to Share
3. Lease of the Property by the Co-Tenant to 3rd party
4. Depletion of natural recourses

Question 17

Cotenancy & Contribution

Answer 17

• Contribution concerns the right of one co-tenant to force the other co-tenants to pay their fair share of some expendature made on the property.
• The right of contribution depends on what type of expadenture was made on the property

Question 18

Types of Expendatures for Contribution in CoTenancy

Answer 18

1. Improvements?
2. Repairs?
3. Payment of Mortgage?
4. Taxes?

Question 19

Contribution from CoTenants for the Expendature of Improvements?

Answer 19

Although there is no current right of contribution, any monies expended for improvements my be recouped later - generally at the time of:

• sale of property
• or partioning of the property

Question 20

Contribution from CoTenants for the Expendature of Repairs?

Answer 20

Contribution is required, but ONLY for necessary repairs

Question 21

Contribution from CoTenants for the Expendature of making mortgages payments?

Answer 21

Contribution is required for any payment on any mortgage on the property that has been signed by all the co-tenants

Question 22

Contribution from CoTenants for the Expendature of Taxes?

Answer 22

Contribution is required for all governmentally imposed obligations such as:

• property taxes
• other assessments such as improvements to the curb, streets, sewers etc.