Concurrent Estates, Rights and Obligations of Concurrent Owners Flashcards
Define concurrent estates
Ownership or possession of real property by two or more persons at the same time
O conveys, “to A and B and their heirs”
True or false: Concurrent owners each have a right to use or possess the entire property
True
True or false: Concurrent owners cannot contract out of the rule that concurrent owners each have the right and use and or possess the entire property
False. They can.
A tenancy in common is the ____ concurrent interest
Default. Any conveyance to more than one person without additional language is presumed to be a TIC
Concurrent owners have ____ but ___ interests in the property
Separate, undivided
True or false: TIC has right of survivorship
False.
Each co-tenant can transfer the property freely at death as well as during life
Define joint tenancy
Tenancy in common with a right of survivorship. Surviving joint tenant automatically takes the deceased tenant’s interest
How is joint tenancy created?
- Grantor must make clear expression of intent AND
- Must be survivorship language, “as joint tenants with right of survivorship”
The four unities of joint tenancy are Possession, Interest, Time and ____ ?
Title (PITT)
Possession: each joint tenant has equal right to possess the whole of the property
Interest: Joint tenants must have a an equal share of the same type of interest
Time: Joint tenants must receive their interest at the same time
Title: Joint tenants must receive their interest in the same instrument of title
True or false: If all PITT unities are not met, the ownership defaults to tenancy in common
True. AND, if one unity is lost, the joint tenancy is severed.
What are common situations when the joint tenancy is severed and converts to tenancy in common
- Inter vivos transfer – destroys right of survivorship
A, B, and C own Blackacre as joint tenants. A transfers her shares to D. What % of share and what type of concurrent interest does each party have?
A = nothing
B = 1/3 interest as joint tenant
C = 1/3 interest as joint tenant
D = 1/3 interest as tenancy in common
Conveyance by one of more than two joint tenants does not destroy the joint tenancy of the remaining joint tenants
True or false: Any lien against a joint tenant’s interest survives the tenant’s death, so the surviving tenants interests are affected
False. The lien terminates so the surviving tenants’ interests are not encumbered
Re: mortgages and severing a joint tenancy, the majority rule follows a _____ theory and the minority rule is the ____ theory
Majority = lien theory, mortgage is treated as a lien and does not destroy JT
Minority = title theory, mortgage severs title and tenancy between JTs and the creditor is converted into TIC
If a joint tenant leases her share in the property to a tenant. Does this sever a joint tenancy?
It depends.
Some say that it severs the JT. Others say it’s a temporary suspension of JT.
Define tenancy by the entirety
Joint tenancy b/t spouses with ROS.
Marriage is the fifth unity
True or false: tenants by the entirety cannot alienate or encumber their shares without the consent of their spouse
True
If a grant of tenants by the entirety is ambiguous, what happens?
Ambiguous = does not include the words, “as tenants by the entirety with right of survivorship”
Treated as JT or TIC
What is the exception to the rule that each co-tenant has the right to possess all of the property, regardless of the co-tenant’s share and type of co-tenancy.
If the co-tenants have entered into an agreement to the contrary
True or false: A co-tenant in possession of property owes the other co-tenant(s) a duty to pay rent
False. A co-tenant in possession is not required to pay rent to co-tenants out of possession
____ is when a co-tenant in possession denies another co-tenant access after the co-tenant has requested access
Ouster (ex: changing the locks, throwing out co-tenant’s stuff)
Note that the non-possessing co-tenant must ask for access
Name the remedies for ousted tenants
- Injunction granting access to property
- Recover damages for the value of the use while co-tenant was unable to access property
Rent received from a third party’s possession of the property, minus operating expenses are divided based on _________ of each tenant
Ownership interests.
The same goes for operating expenses b/t concurrent owners
True or false: A co-tenant can collect contribution expenses from other co-tenants for payments in excess of her share of the operating expenses
True, use a contribution claim to pay you back
True or false: there is a right to reimbursement from co-tenants for necessary repairs or improvements
False, BUT the co-tenant who makes the repairs/improvements can get credit in a partition action
A partition action is available to which concurrent estates?
- Joint Tenants
- Tenants in Common
Unilateral right to either (anyone can engage at any time)
What is the legal effect of a partition?
Court will divide the property into distinct portions
Courts have a preference for ________ division
Physical, unless
- not practical
- not fair
Then a partition by sale is more appropriate
Proceeds from a partition by sale are divided among co-tenants based on….?
Their ownership interests
True or false: Co-tenants can agree not to partition
True, as long as
- The agreement is clear and
- time limitation is reasonable
