Concurrent Estates: Rights and Duties of Co-Tenants

Question 1

What is a co-tenant’s right to possession?

Answer 1

• Each co-tenant has right to possess and enjoy the whole, but has NO right exclusive possession of any part.
• A co-tenant out of possession cannot bring a possessory action unless she is “ousted” (another co-tenant claims right to exclusive possession)

Question 2

Does co-tenant in exclusive possession owe rent to other tenants?

Answer 2

absent ouster, co-tenant in exclusive possession is NOT liable to others for rent

Question 3

What is the rule if one co-tenant rents to a third party?

Answer 3

CT who leases all/part of premises to 3rd party MUST account to his co-tenants, for their proportionate share of profits

Example –> if Greg is 10% owner, he gets 10% of profits

NOTE –> same rule for exploiting the property (for example - mining)

Question 4

What is the rule w/ regards to co-tenants and carrying costs?

Answer 4

“Carrying Costs” = taxes, mortgage interest

Rule –> Each CT is responsible for his fair share of “carrying costs” based on his undivided shares.
HOWEVER –> Reimbursement to co-tenant in sole possession is limited to extent expenditures exceed FRV of her use

EXAMPLE –> if Greg own’s 10%, he owes 10%

Question 5

What is the rule w/ regards to REPAIRS and IMPROVEMENTS?

Answer 5

REPAIRS –> Repairing CT is entitled to contribution for a “reasonable and necessary” repairs, provided that she told other CT of the need
EXAMPLE –> Greg own’s 10%, he must contribute 10% for such costs, if he had notice

IMPROVEMENTS :
1. During life of tenancy —>NO RIGHT to contribution for improvements

2. AT PARTITION –>
   • Improving co-tenant gets credit for any increase in value
   • Improving co-tenant bears full responsibility for any loss

Question 6

What is the rule w regards to waste?

Answer 6

 CT MUST NOT commit waste [Three Types:

(1) voluntary;
(2) permissive;
(3) ameliorative

-CT can bring action for waste during life of co-tenancy

Question 7

What is the right of Co-tenants w regards to partition?

Answer 7

JT or TIC can bring action for partition.

Tenant by the Entirety cannot.

Question 8

What is the general rule w/ regards to a Co-tenant encumbering her interest (by mortgage or judgment lien)?

Answer 8

Tenants by Entirety –> cant do it alone

JT or TIC:
General rule –> JT or TIC may encumber her OWN interest, but not the interests of other co-tenants
EXAMPLE –> if one co-tenant mortgages his interest, the mortgagee can foreclose only that co-tenant’s interest.

If a joint tenancy –> a mortgage (in a lien theory state) or lien does NOT sever the JT, but a foreclosure sale will

NOTE –> mortgagee or lienor runs risk that co-tenant will die before foreclosure, extinguishing mortgagee/lienor’s interest

NOTE –> in “title theory” states (minority), the mortgage itself will sever the JT