Concurrent Estates in Land Flashcards
Types of Tenancys
- Joint Tenancy
- Tencancy in Common
- Tenancy in the Entirety
Joint Tenancy - the 4 Unities
4 unities must be present at the outset
- Time
- Title
- Interest
- Possession
Creation of a JT
- 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
The Joint Tenancy Right of Survivorship
- 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
Severance
- Refers to the involuntary termination of the JT
- Severance occurs when any of the 4 unities is disturbed
- JT cannot be severed by Will
Ways of Severance
- Sale
- Mortgage
- Contract of Sale
- Creditor’s Sale
Mortgage and Severance: Lien & Title Theory
- 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
Severence at Contract of Sale: Doctrine of Equitable Conversion
Severance occurs on the date the valid contract sale was signed - because of the doctrine of equitable conversion
Creditor’s Sale and JT
Under majority view, there is no severance until judicial sale actually takes place
Tenancy in Common
- 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
Tenancy in the Entirety
- 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
Termination of Tenancy by the Entirety
- Death
- Mutual Agreement in writing
- Divorce
- Execution by a Joint Creditor
Co-Tenancy Issues:
- Possession
- Accountability
- Contribution
Co-Tenancy & Possession
Co-Tenant has the right to possess the whole property, consistent with the same right in every other co-tenant
Co-Tenancy & Accountability Rule
One Co-Tenant does not have to account to another Co-Tenant for his share of the profits, subject to 4 exceptions.
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?
- Ouster
- accounting is required if one co-tenant is either keeping a co-tenant off the property or claiming a right of exclusive possession
- Agreement to Share
- Lease of the Property by the Co-Tenant to 3rd party
- Depletion of natural recourses
Cotenancy & Contribution
- 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
Types of Expendatures for Contribution in CoTenancy
- Improvements?
- Repairs?
- Payment of Mortgage?
- Taxes?
Contribution from CoTenants for the Expendature of Improvements?
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
Contribution from CoTenants for the Expendature of Repairs?
Contribution is required, but ONLY for necessary repairs
Contribution from CoTenants for the Expendature of making mortgages payments?
Contribution is required for any payment on any mortgage on the property that has been signed by all the co-tenants
Contribution from CoTenants for the Expendature of Taxes?
Contribution is required for all governmentally imposed obligations such as:
- property taxes
- other assessments such as improvements to the curb, streets, sewers etc.
