Concurrent estates - Tenancy

Question 1

What is joint tenancy?

Answer 1

2+ own with right of survivorship

Question 2

What is the right of survivorship?

Answer 2

When one joint tenant dies, the property is freed from their concurrent interest (their survivors do not succeed it)

Question 3

What is tenancy by the entirety?

Answer 3

Marital interest between married partners with right of survivorship

Question 4

What is tenancy in common?

Answer 4

2+ own with no right of survivorship

Question 5

How do you create a joint tenancy?

Answer 5

1. Four unities: Joint tenants must take interests:
   (a) same time
   (b) same title (same instrument)
   (c) identical shares
   (d) rights to possess the whole
2. Grantor must clearly express right of survivorship
3. Use of straw if one party already has fee simple

NY: statute removes need for straw; can convey directly to self and joint tenant

Question 6

When can the joint tenancy been severed and sold?

Answer 6

1. Can sell interest, even secretly
   (a) severs only with respect to seller’s interest
   (b) buyer is tenant in common
   (c) remaining joint tenants keep joint tenancy between them
2. Mere act of entering into contract to sell share of joint tenancy will sever as to contracting party’s interest

Question 7

When is there severance and partition of joint tenancy?

Answer 7

1. Voluntary agreement: peaceful way to end relationship
2. Partition in kind: court action for physical division in best interests of all
3. Forced sale: court action, if in best interests of all, where land sold and proceeds divided proportionately

Question 8

When is there severance and mortgage of joint tenancy?

Answer 8

1. Title theory of mortgages: joint tenant’s execution of mortgage/lien on joint tenancy share severs as to that encumbered share
2. Lien theory of mortgages: joint tenant’s execution of mortgage/lien on joint tenancy share DOES NOT SEVER

NY FOLLOWS LIEN THEORY OF MORTGAGES

Question 9

What are the characteristics of a tenancy by the entirety?

Answer 9

1. Recognized in NY
2. Created only between married partners with right of survivorship
3. Arises presumptively in any conveyance to married partners unless stated otherwise
4. Creditors of only 1 spouse cannot reach (NY: 1 spouse may mortgage his interest, creditors can enforce against that, but non-debtor spouse’s rights must be untouched)
5. Neither tenant, acting alone, can defeat the right of survivorship by a unilateral conveyance to a third party

Question 10

What are the characteristics of a tenancy in common?

Answer 10

1. Each co-tenant owns an individual part and each has a right to possess the whole
2. Each interest is descendible, devisable, and alienable; no survivor rights
3. Presumption favors tenancy in common
4. Co-tenant must not commit waste
5. Right to petition for partition

Question 11

What is adverse possession by tenant in common?

Answer 11

1. Unless ousted other co-tenants, one cannot acquire title by adverse possession because no hostility
2. NY: theory of implied ouster allows co-tenant to acquire full title through exclusive possession for 20 continuous years

Question 12

Who is responsible for costs in tenancy in common?

Answer 12

Each co-tenant responsible for fair share of carrying costs (eg, taxes, mortgage interest payments) based on undivided share

Question 13

What if I rent as a co tenant in common to a third party?

Answer 13

If co-tenant rents to third party, must account to other co-tenants for their fair share of that rent

Question 14

What if I carry out repairs in tenancy in common?

Answer 14

Repairing co-tenant enjoys right to contribution for necessary repairs provided told others of need

Question 15

what if i carry out improvements to property in tenancy in common?

Answer 15

1. No right to contribution for “improvements”
2. At partition, improving co-tenant entitled to credit equal to any increase in value caused by efforts OR decrease caused by harm