Concurrent Estates: Intro and Joint Tenancy

Question 1

What are the three concurrent estates?

Answer 1

1. joint tenancy
2. tenancy by the entirety
3. tenants in common

Question 2

What is a “joint tenancy”?

What issues arise?

Answer 2

2+ owners with a right of survivorship

Alienability –> Yes, but severs JT as to tenant that transfers

Issues that arise:

1. formation
2. severance

Question 3

What is required to create a “joint tenancy”? (2)

Answer 3

1. EXPRESS statement of survivorship
   NOTE: without express statement, it’s presumed to be a TIC
2. Four Unities (T-TIP)
   (i) Time
   (ii) Title
   (iii) Identical Interest
   (iv) Possession

Question 4

Describe the four unities required for a joint tenancy.

Answer 4

T-TIP

1. Time - Tenants must acquire their interest at the same time
2. Title - by same instrument
3. Identical Interest - their interest must be identical
4. Possession - each one must have the right to possess the whole

Question 5

In general, what are ways to sever a joint tenancy?

Answer 5

SPaM

1. Severance by sale (or involuntary conveyance)
2. Severance by Partition (break up of the relationship)
3. Mortgage (Two Approaches)

Question 6

What are the rules w/ regards to severance of a joint tenancy by sale ?

Answer 6

JT can sell/transfer her interest intervivos

EFFECT –> severs JT as to transferee, but not as to other remaining. Transferee becomes TIC.

NOTE –> sale may be done secretly and without consent

NOTE –> under common law doctrine of “equitable conversion” mere act of entering into K to transfer JT interest severs the JT effective as of date K is entered into

Question 7

What are the rules w/ regards to severance of a joint tenancy by partition?

What are the three ways to do a partition ?

Answer 7

1. Voluntary Partition by agreement of all parties
2. By Court Action:
   (i) “partition in kind” - court action for physical division of blackacre if in the best interests of all
   (ii) “forced sale” - court action for forced sale and division of proceeds if in the best interests of all

Question 8

What are the rules w/ regards to severance of a joint tenancy by mortgage ?

Answer 8

Majority Approach (“Lien Theory of Mortgages”) –> mortgaging interest does NOT sever joint tenancy

Minority Approach (“Title Theory of Mortgages”) –> mortgaging interest DOES sever JT as to his interest

Question 9

Do judgment liens sever JT?

Answer 9

Nope, not until actually sold at foreclosure sale

Question 10

What is the effect of a testamentary disposition of a JT’s interest?

Answer 10

It is ineffective, bc at death the testator’s interest vanishes.