Concurrent Interests Flashcards
Concurrent Interests
Where two or more people have an ownership interest same time. Everyone is permitted full possession, unless party’s contract out.
Types:
1. Tenancy in Common
2. Joint Tenancy
3. Tenancy by the Entirety
Do concurrent owners owe each other a fiduciary duty?
Generally no, unless each obtained their interest under a reliance through one another or they got their shares via gift/will.
Relevant when there has been a foreclosure on the concurrently owned property; if one cotenant buys the whole land, the others are allowed to buy back their shares by paying the cost of the property at the time of foreclosure sale.
If the language in the transfer is ambiguous, what is the default concurrent interest shared?
Tenancy in Common
Tenancy in Common
All owners have separate interests (i.e. not equal shares), yet have undivided access to the land. Any owner can unilaterally transfer, devise, mortgage, or lease to a third party.
There is NO right of survivorship.
Joint Tenancy
Has four requirements/unities:
1) Possession; all equal possession rights
2) Interest; all have equal interest shares
3) Time; all acquired interest at the same time
4) Title; all must have interest through same title or instrument
Comes with right of survivorship, as long as it is explicitly stated in the words of transfer. This means a joint tenancy cannot be devised via trust or will.
Severance of a Joint Tenancy
A joint tenancy is destroyed if any of the four unities are destroyed. Typically can be destroyed through a transfer during someone’s life.
Does a mortgage sever a joint tenancy?
Lien states (majority): No, only a lien is placed on the land.
Title state (minority): creditor obtains the property as a tenant in common.
Tenancy by the Entirety
Similar to a joint tenancy with right of survivorship, but only applies to married folk.
CANNOT alienate/encumber the property without the other spouse’s consent.
Divorce transforms the property into a tenancy by common.
Concurrent Owners and Rent
Unless agreed upon, co-tenants do not owe each other rent.
If a co-tenant rents to a third party, other co-tenants are entitled to a portion of the proceedings equal to their ownership interests.
EX: 1/2 interest, 1/2 amount of 3rd party rent
Operating Expenses shared with Concurrent Owners
Taxes/Mortgages/Encumbrances:
All tenants are required to split the cost of such payments. A tenant can seek contribution fees from other co-tenants if they do not assist, unless said cotenant is a sole possessor and the expenses do not exceed the fair rental value of the land.
Repairs:
Cannot compel other co-tenants to contribute, even if necessary. But can attempt to recover through a partition action.
Improvements to Land:
Cannot compel other co-tenants to contribute, but may be able to partition the amount in increased value.
Ousting a Co-Tenant
Ouster occurs when one co-tenant prevents land access of co-tenant. Options include:
1) Seeking an injunction to retake the land
2) Recover damages (rent) from the other co-tenant for value of use.
Adverse Possession of an Co-Tenant
If all the requirements for adverse possession are met, a co-tenant that has outsered another co-tenant may take quiet title to their land through adverse possession.
Partitions
For co-tenants under a TIC or JT, each has a unilateral right to initiate partition proceedings. Two types:
1) Partition in Kind: Physically dive the land equally. Preferred method.
2) Partition in Sale: Court orders a sale of the land. Only used if In Kind is impractical OR not fair.
