Concurrent Ownership

Question 1

What are the 4 characteristics of a tenancy in common?

Answer 1

1. Each tenant in common has an undivided, fractional interest in the property. Each may transfer his interest to another person.
2. It is freely alienable, devisable and descendible
3. Each has the right to use and possess the whole parcel, even if his fractional interest is smaller than the interest of others.
4. Any conveyance or devise to two or more unmarried persons is presumed to create a tenancy in common, unless it contains language showing an intent to create a joint tenancy

Question 2

What rights to tenants have under a joint tenancy?

Answer 2

Joint tenants have an undivided right to use and possess the whole property
Each joint tenant also a right of survivorship. When one tenant dies the other claims ownership of the whole property.

Question 3

What four unities are necessary to create a joint tenancy?

Answer 3

1. Time - All joint tenants must acquire their interests at the same time.
2. Title- They must acquire title by the same instrument (cannot be different deeds)
3. Interest- They must have the same shares in the estate, equal in size and duration
4. Possession - They must have an equal right to possess, use and enjoy the whole property

Question 4

What is needed to form a tenancy of the entirety? What rights to each tenant have?

Answer 4

All four unities plus marriage.

Each tenant by the entirety has an undivided right to use and possess the whole property and a right of survivorship.

Tenancy by the entirety can only be ended by death, divorce, or the agreement of both spouses

Question 5

What is the holding in James v Taylor?

Answer 5

The court held that a tenancy in common was created and not a joint tenancy. The language”jointly and severally, and unto their heirs, assigns, and successors forever, with the grantor maintaining a life estate “ is too ambiguous. The law presumes that the grantor intends to create a tenancy in common absent express language to the contrary. Modern trend is to focus more on grantor’s intent.

Question 6

In Arkland Co v. Harper, why did the court determine partition by sale was appropriate?

Answer 6

In a partition proceeding in which a party opposes the sale of property, the economic value of the property is not the exclusive test for deciding whether to partition in kind or by sale.

In this case the Caudill heir were not solely motivated by the monetary value of the property, they wanted to keep their family home?

Question 7

What rule does the court impose in Sawada v Endo?

Answer 7

The interest of a husband or a wife in an estate by the entireties is not subject to the claims of his or her individual creditors during the joint lives of the spouses

Question 8

What is the court’s reasoning in Sawada?

Answer 8

Creditors are not entitled to special consideration. If the debt arose prior to the creation of the estate, the property was not a basis of credit

if it arose after then the creditor has notice of the characteristics of the estate which limited his right to reach the property

Family solidarity is also a public policy concern here - Protecting a surviving spouse from the inconvenient administration of the decedent’s estate from other debts