Concurrent Estates (Module 2)

Question 1

Joint Tenancy

Answer 1

Two or more own with the right of survivorship

“right of survivorship” must be clearly stated in the conveyance otherwise assumed to be TICs

is NOT descendible or devisable

Question 2

Tenancy by the Entirety

Answer 2

Protected marital interest between spouses with the right of survivorship

Question 3

Tenancy in Common

Answer 3

Two or more own without the right of survivorship

Question 4

Right of Survivorship

Answer 4

When one joint tenant/tenant by the entirety dies, their share automatically goes to the surviving joint tenant/their spouse

Question 5

How to Create a Joint Tenancy

Answer 5

“Four Unities”: PITT

Joint tenants must take their interest:

P - possession (with right to possess the whole)
I - identical/equal interests
T - time (at the same time)
T - title (in the same deed, will, etc.)

Question 6

Severance of a Joint Tenancy - Sale

Answer 6

Joint tenant can sell/transfer their interest during their lifetime and then the person they convey to becomes a TIC

If there is more than three people in the joint tenancy and one sells, the new person is a TIC but the remaining two are still joint tenantsS

Question 7

Severance of a Joint Tenancy - Types of Partition

Answer 7

Three types:

1) voluntary agreement
2) partition in kind (judicial action for physical division of the property)
3) forced sale (judicial action where land is sold and proceeds divided proportionately)

Question 8

Effect of Mortgage on Joint Tenancy

Answer 8

Lien Theory (majority): mortgage does not sever the JT; but if mortgage is foreclosed and sold does sever

Title Theory (minority): does sever

Question 9

Tenancy by the Entirety Protections

Answer 9

Very protected form of ownership between married partners

Creditors of only one spouse cannot touch the tenancy to satisfy debt

One spouse (acting alone) cannot defeat the right of survivorship by conveying to a third party

Question 10

Severance of Tenancy by the Entirety

Answer 10

Death, divorce, or joint creditor of BOTH spouses can sever

Upon divorce it becomes a TIC

Question 11

Tenancy in Common

Answer 11

No right of survivorship

Each tenant owns a part and has the right to possess the whole

Each interest is devisable, descendible, and alienable (bc there’s no right of survivorship)

Question 12

Ouster

Answer 12

If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part of the land; is an actionable wrong

Question 13

Various Co-Tenant Rights/Duties (just review it)

Answer 13

Possession: each has right to possess the whole

Rent/Lease/Profits: can’t charge co-tenant rent, but all tenants entitled to their pro rata share of rent collected from 3Ps as well as any profit from exploitation of land (like mining)

Adverse Possession: cannot adversely possess a co-tenant (no hostility element)

Repairs: co-tenant who does reasonable, NECESSARY repairs is entitled to contribution from co-tenant (contribution based on pro rata share)

Improvements: if unilaterally decide to make an improvement then not entitled to contribution from co-tenant
NOTE: at partition of tenancy, improving party gets credit to any value increase resulting from the improvement, and gets a debit from any value decrease

Question 14

Types of Waste (Co-Tenant Duties)

Answer 14

Three types of waste:

1) voluntary (willful destruction)
2) Permissive (neglect)
3) Ameliorative (unilateral change that increases value)

waste is an actionable claim against co-tenant and can bring partition action (or damages?)