Concurrent Interests Flashcards
Tenancy In Common:
Each co-tenant owns an individual part, and equal right to possess or use the whole property.
No right of survivorship exists so each tenant can devise or freely transfer his interest to anyone.
Requires only the unity of possession, not interest, time, or title.
Joint Tenancy With Right of Survivorship:
When two or more individuals own property with the right of survivorship (upon the death of a joint tenant, the interest terminates and automatically goes to the surviving joint tenants).
Ex: O to A and B as JTWROS; when A dies, her share automatically goes to B
Modern law calls for a clear expression of intent along with survivorship language.
JTWROS Unities:
- The equal right to possess or use the property (unity of Possession)
- Interest equal to the others (unity of Interest)
- At the same time (unity of Time)
- And in the same instrument (unity of Title)
JTWROS Severance/Termination:
Although an interest in a joint tenancy cannot be devised (willed), joint tenants can convey all or part of their individual interests during their lifetimes (inter vivos) to a third party, thereby severing the joint tenancy.
Can sell or transfer her share w/o the other’s knowledge or consent.
Once the joint tenancy interest is transferred inter vivos, the right of survivorship to that interest is destroyed and converted to a tenancy in common.
Tenancy By Entirety
A joint tenancy between married persons who share the right of survivorship.
The same rules for joint tenancy apply plus the fifth unity of person.
Neither party can alienate or encumber the property without the consent of the other (no unilateral conveyance).
Rights & Obligations Among Cotenants:
Possession Ouster Natural Resources Third-Party Rents Operating/Carrying Expenses Repairs and Improvements Partition
Possession:
Unless there is an agreement to the contrary, each co-tenant has the right to possess/enjoy all of the property.
A co-tenant is generally not required to pay rent to the other co-tenants for the value of her own use of the property, even when the other co-tenants do not make use of the property.
Similarly, a co-tenant is generally not required to share profits earned from the use of the property, such as from a business conducted on the property.
A co-tenant’s exclusive use of the property does not, by itself, give rise to adverse possession of the interest of another cotenant.
Ouster:
When a co-tenant refuses to allow another co-tenant access to the property, the ousted co-tenant may bring a court action for ouster to gain access to the property and to recover the value of the use of the property for the time during which the co-tenant was denied access to the property.
Natural Resources:
A co-tenant is entitled to the land’s natural resources (e.g., timber, minerals, oil, gas) in proportion to her share.
Third-Party Rents:
A co-tenant must account to other co-tenants for rent received from third parties, but he can deduct operating expenses when calculating net proceeds.
Third-party rents are divided based on the ownership interest of each tenant.
Operating/Carrying Expenses:
A co-tenant can collect contribution from the other co-tenants for paying more than his portion of necessary or beneficially spent operating expenses (e.g., taxes or mortgage interest), unless he is the only one in physical possession of the property and his use of it is equal to or outweighs the overpayment.
Note that an owner in sole possession can collect only for the amount that exceeds the rental value of the property.
Repairs & Improvements:
A co-tenant does not have a right to be reimbursed by other co-tenants for repairs made to the property, even when those repairs are necessary
However, the majority view is that contribution for necessary repairs can be compelled in actions for accounting or partition.
A co-tenant may, in some jurisdictions, maintain a separate action for contribution, as long as the other co-tenants have been notified of the need for the repair.
Similarly, except in actions for accounting or partition, a co-tenant does not have a right to reimbursement for improvements made to the property.
Partition:
A tenant in common or a joint tenant generally has the right to unilaterally partition the property, but a tenant by the entirety does not have this right.
Property can be partitioned either voluntarily (if the co-tenants agree in writing on the division of land) or involuntarily (by court action).
An reasonable agreement by co-tenants not to seek partition is enforceable.
Partition In Kind:
Where the court order physical division of the property if in the best interest of all parties (works best in rural acreage).
Court may award owelty (equitable device) if after division one party has more, n order to equalize their respective values.
Forced Sale:
Where the court orders a forced sale if in the interest of all parties, and divides the proceeds proportionally (works best if building, where can’t physically divide).
Courts favor partition in kind unless it would result in great prejudice to the owners (economically).
