Concurrent Interests

Question 1

What are the qualities of a tenancy in common?

Answer 1

Separate but undivided interests in the property
Each interest is descendible and conveyable by deed or will
No survivorship rights
Own an undivided share of the whole
Upon creation, each must have a right to possession of the whole

Question 2

What are the qualities of a JTWRS?

Answer 2

Regarded as a single owner
Survivorship rights
Four unities: Time, title, interest, possession

Question 3

What are the two views on how a JTWRS may be severed purposefully?

Answer 3

Majority view: No interest less than fee simple transfer to 3rd person severs the joint tenancy

Minority view: A smaller 3rd party conveyance severs the joint tenancy, and intent may play a role

Question 4

What are the qualities of a tenancy by the entirety?

Answer 4

Created only in married couples
Allowed in half of jurisdictions
Requires the four unities plus a fifth, marriage
Survivorship rights
Neither spouse can defeat the right of survivorship by conveyance to a third party; both must do so together
If spouses divorce, default is conversion to a Tenancy in Common
Protects spouses from unilateral creditors

Question 5

If the language is ambiguous as to whether a TiC or JTWRS is created, what is the default?

Answer 5

At CL JTWRS, today it is TiC
But not at CL, do not make assumptions

Question 6

What is a joint account?

Answer 6

“A and B” or “A or B”

Question 7

What happens to a joint account if one party dies?

Answer 7

If parties are not in a relationship, courts will usually find the intent to pass on death is not there

This is because this is testamentary and does not comply with the Statute of Wills

Question 8

What is a convenience account?

Answer 8

O intends A only have power to draw on the account to pay O’s bills and does not have survivorship rights

Question 9

What is a Totten trust?

Answer 9

“A, in trust for B”
No longer used

Question 10

What is a POD account?

Answer 10

“A, payable on death to B”

Question 11

What are the restrictions on partition?

Answer 11

Not available to TbE and cotenants may not covenant to NEVER bring a partition action

Question 12

What is partition by sale?

Answer 12

Court orders sale of the property and divides the proceeds according to parties’ interests

Question 13

What is partition in kind?

Answer 13

Court allows a real estate expert to evaluate the total value of the property and then has that expert divide the property so that the value is allocated according to the parties’ interests

Question 14

What is owelty?

Answer 14

The court may order compensation in order to make appropriate adjustments to the partition

Question 15

If one cotenant alone is in possession, what are the two views regarding whether they owe the other cotenant rent?

Answer 15

Majority view: If one cotenant alone is in possession of and using property, they do not owe rent to the other cotenant unless ouster is established

Minority view: A cotenant must pay rent to the other even in the absence of ouster

Question 16

What are the two kinds of ouster?

Answer 16

1) Beginning of running of SOL for adverse possession; requires finding that possessing cotenant asserts complete ownership of land and denial of cotenancy relationship

2) Liability of occuping cotenant for rent to other cotenants; must be established that occupying cotenant refuses demand of other cotenant (usually by court order) to be allowed into use and enjoyment

Question 18

What are the rules on whether one co-tenant can lease their interest?

Answer 18

One cotenant in commons and WRS can execute a lease of their interest alone (For JTWRS, this will not sever)

Once a cotenant executes a lease, they cannot use the leased land at all

Question 19

What are the accounting principles for cotenants and rents and profits?

Answer 19

In all states, cotenant who collects from 3rd parties must account to other cotenants for amounts received

Absent ouster, based on actual receipts not fair market value

Question 20

What are the accounting principles for cotenants and taxes, mortgages, other carrying charges?

Answer 20

Cotenant paying more than his share generally has a right to contribution

If cotenant is in sole possession and value of use and enjoyment equals or exceeds right to contribution, no action exists

Question 21

What are the accounting principles for cotenants and improvements/repairs?

Answer 21

Most jurisdictions recognize no affirmative right to contribution in absence of agreement (courts want to compel private agreement)

The actioning party should be compensated for any increase in value of the jointly held property

If physically partitioned, improved portion is awarded to improving cotenant (Could also order owelty)

Question 22

What is feme covert at CL?

Answer 22

Woman moved under husband’s protection, ceased being legal person for the duration of the marriage, all personal property became husbands

Question 23

What is jure uxoris at CL?

Answer 23

Husband had right of possession to all of wife’s land (could be reached by husband’s creditors)

Question 24

What is the MWPA?

Answer 24

Enacted in all CL states by end of 19th C: Gave married women control over all their property, made it immune from husband’s debts

Question 25

What is the Group III states rule under the MWPA?

Answer 25

When married, individual creditors cannot reach possessory or survivorship interests for property held in TbE

Question 26

What happens to property held in TbE if there is divorce?

Answer 26

Becomes TiC

Question 27

What is the CL rule at divorce?

Answer 27

Husband owed wife alimony if she was not at fault

Question 28

What is the modern rule of no-fault diverse?

Answer 28

Court uses the rule of equitable distribution to divide property acquired before and/or during marriage

Question 29

What is the modern view of alimony?

Answer 29

Rehabilitative: Limited until spouse can enter job-market and become self-sufficient

Question 30

What is the majority view on marital personal property when one spouse dies?

Answer 30

Spouse can accept the will or reject it and take a statutory amount

Question 31

What is the CL rule on personal property when one spouse dies?

Answer 31

Widow: 1/3 if there is surviving issue, 1/2 otherwise

Widower: Takes all

Heirlooms descended via primongeniture

Question 32

What is dower?

Answer 32

Dower is a gift from husband to wife of life estate in 1/3 of each parcel of qualifying land held in fee simple or as tenant in common

Once husband dies, wife becomes entitled to dower in possession

Question 33

What is curtesy?

Answer 33

Widower is entitled to a life estate in each piece of wife’s real property, but does not attach at wife’s death unless issue of marriage capable of inheriting estate is born alive