Concurrent Intrests Flashcards
Exceptions to joint right of survivorship
- Still subject to federal estate taxation (unless spouse)
2. States can tax fractional share owned by decedent joint
Joint tennacy has rit of survivorship, meaning…
When 1 joint dies, the prop. Is free from his concurrent intrests; survivor retains undivided right in the prop.
Joint Tennecy requirea 4 unitites
- Unity of time ( intrests vested at same time)
- Unity of title (intrests aquired by same instrument)
- Unity of intrest ( intrests of same type and duration)
- Unity of possession (1/2 &1/2 share, 1/3, 1/3, &1/3)
If one of the unities is destroyed - prop becomes a ______.
Tennacy in common
Joint tennacy: implied or express lang. Required?
Express lang. Requires. Must be clear intent to create this estate.
“To A and B as joint tennants with right of survivorship”
Tennacy in common: presumed or express lang required?
Presumed; joint tennacys are generally disfavores.
Severence of a joint tennacy
Can be terminated by a suit of partition
Tenancy in Common (non-marital)
Features
Features
- No right to survivorship.
- Upon death, right descends to heirs, not to co-tenants.
- Can be accessed by creditors.
Tenancy in Common (non-marital)
Creation
- Can be created expressly in a grant or will or by operation of law.
- Can be created through operation of law if several people inherit a particular piece of property.
Tenancy in Common (non-marital)
Termination
Death of a co-tenant does not terminate a TIC.
Tenancy passes to heirs or devisees, who become tenants-in-common with the surviving co-tenants.
Only by partition
Tennacy in common or joint tennacy presumed?
- Presumption - court assumes TIC unless devise specifically states otherwise.
- Can also occur if a grant to two or more persons does not create a valid joint tenancy OR if it is ambiguous as to the type of concurrent interest intended.
Partitioning a TIC
Partition can be:
“In kind”- land is physically divided;
“By sale”- property is sold and proceeds are divided;
“By appraisal”- one co-tenant buys out the others at appraisal price.
Courts can order compensatory adjustment to take into account inequalities in expenses incurred or benefits derived from the property
Joint Tenancy (non-marital) Features
1.Right to Survivorship
2.Upon death, passes to joint tenant, not to heirs even if specifically directed in will.
—Avoids probate (“poor man’s will”)
—Has made JT must more popular in the last century.
3.Cannot be accessed by creditors after interest has passed to co-tenant.
Ex. People v. Nogarr (p.193)
One JT took out a mortgage on his part of the property without knowledge of other JT. After his death, creditor came, tried to take his half of property.
Held that if title passed with the mortgage, that would destroy unity of title and would create TIC that creditor could get to. Because this mortgage only put lien on property, none of the unities were destroyed. Was a JT, passed directly to other JT, nothing for creditor to get at.
This is a bad ruling for creditors; in states where liens rather than title pass with mortgages, creditors require signatures from both JTs.
Joint Tenancy (non-marital) Creation
“Four Unities” required:
1.Unity of interest - interests granted must be identical.
2.Unity of title - interests must be created in the same grant/instrument.
3.Unity of time - interests must vest at the same moment.
4.Unity of possession - required owners to have equal rights of access to and use of all portions of the land.
—Third party straw man often used to create the interest so that it fulfilled the four unities.
Some states have disregard this rigid application of the rule.
Joint Tenancy (non-marital) Termination
- By contract if all JTs agree.
- Simultaneous death of all JTs.
- Murder of one JT by other JT.
- Divorce of JTs.
- In some states, by unilateral act of one JT.
