Concurrent Interests Flashcards
What are the qualities of a tenancy in common?
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
What are the qualities of a JTWRS?
Regarded as a single owner
Survivorship rights
Four unities: Time, title, interest, possession
What are the two views on how a JTWRS may be severed purposefully?
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
What are the qualities of a tenancy by the entirety?
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
If the language is ambiguous as to whether a TiC or JTWRS is created, what is the default?
At CL JTWRS, today it is TiC
But not at CL, do not make assumptions
What is a joint account?
“A and B” or “A or B”
What happens to a joint account if one party dies?
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
What is a convenience account?
O intends A only have power to draw on the account to pay O’s bills and does not have survivorship rights
What is a Totten trust?
“A, in trust for B”
No longer used
What is a POD account?
“A, payable on death to B”
What are the restrictions on partition?
Not available to TbE and cotenants may not covenant to NEVER bring a partition action
What is partition by sale?
Court orders sale of the property and divides the proceeds according to parties’ interests
What is partition in kind?
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
What is owelty?
The court may order compensation in order to make appropriate adjustments to the partition
If one cotenant alone is in possession, what are the two views regarding whether they owe the other cotenant rent?
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
What are the two kinds of ouster?
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
What are the rules on whether one co-tenant can lease their interest?
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
What are the accounting principles for cotenants and rents and profits?
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
What are the accounting principles for cotenants and taxes, mortgages, other carrying charges?
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
What are the accounting principles for cotenants and improvements/repairs?
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)
What is feme covert at CL?
Woman moved under husband’s protection, ceased being legal person for the duration of the marriage, all personal property became husbands
What is jure uxoris at CL?
Husband had right of possession to all of wife’s land (could be reached by husband’s creditors)
What is the MWPA?
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
What is the Group III states rule under the MWPA?
When married, individual creditors cannot reach possessory or survivorship interests for property held in TbE
What happens to property held in TbE if there is divorce?
Becomes TiC
What is the CL rule at divorce?
Husband owed wife alimony if she was not at fault
What is the modern rule of no-fault diverse?
Court uses the rule of equitable distribution to divide property acquired before and/or during marriage
What is the modern view of alimony?
Rehabilitative: Limited until spouse can enter job-market and become self-sufficient
What is the majority view on marital personal property when one spouse dies?
Spouse can accept the will or reject it and take a statutory amount
What is the CL rule on personal property when one spouse dies?
Widow: 1/3 if there is surviving issue, 1/2 otherwise
Widower: Takes all
Heirlooms descended via primongeniture
What is dower?
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
What is curtesy?
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
