Concurrent Ownership

Question 1

Tenancy in Common

Answer 1

Tenancies in common may be created explicitly, by conveying property to more than one party as “tenants in common.”

Usually the default form of concurrent tenancy in face of ambiguity.

Each cotenant only has the authority to transfer her own interest and has the right to transfer or encumber the interest unilaterally and devise it or have it inherited in case of intestacy on death.

Tenants may also file to terminate the co-tenancy and divide the property or its proceeds by bringing an action for partition.

Question 2

Creation Language: Tenancy in Common

Answer 2

“To A and B” or

“To X, Y, and Z as tenants in common, with one quarter undivided interest in X, one quarter undivided interest in Y, and one half undivided interest in Z.”

Question 3

How to Terminate Co-Ownerships:

Answer 3

TIC - Partition
JTWROS - Partition or Sale of Conveyance (JT –> TIC)
TIE - Divorce

Question 4

Joint Tenancy

Answer 4

• Right of survivorship
• When a joint tenant dies, her property interest is immediately transferred to the remaining joint tenants in equal shares. Thus, in a joint tenancy owned by A, B, and C, each with a one-third undivided interest, A’s interest when she dies goes to B and C (that is, half to B and half to C)

Question 5

Creation language: Joint Tenancy

Answer 5

“To A and B, as joint tenants with rights of survivorship,” or

“To A and B as joint tenants and not as tenants in common.”

(default is TIC)

Question 6

Four unities of Joint Tenancy (created/terminated)

Answer 6

T.T.I.P
(1) the interest of each joint tenant must be created at the same time;
(2) joint tenants must acquire title by same instrument (conveyance, will, or deed);
(3) joint tenants must possess equal interests in the property; and
(4) joint tenants must have the right to possess.

Question 7

Tenancy by the Entirety

Answer 7

Marital estate that can only be created between married partners who share the right of survivorship.

Question 8

Creation language: Tenancy by the entirety

Answer 8

“To spouses A and B as a couple” (though can often assume TIE if conveyance to married couple)

Question 9

Shares between Ownerships

Answer 9

TIC - Can be different if specified, otherwise, equal.
JT - MUST be equal - see unities
TIC - whole is fully shared - no division of shares.

Question 10

Concurrent Ownership

Answer 10

Property rights that are shared as well as divided - more than one person may have the right to control the same thing at the same time.

• For example, a husband and a wife owning a condo together while also sharing the common areas with the other condo owners.

Question 11

Partition

Answer 11

Where a court may order the property physically divided among the co-owners (in kind)(favored by court)

If not feasible, will order the property to be sold and the proceeds divided among the co-owners in proportion to their ownership shares. (by sale)(rarely used)

Question 12

Ouster + Constructive Ouster

Answer 12

Ouster is where one co-owner pushes another out and excludes them from their right of possession (constructive is where the property cannot feasibly be possessed by all cotenants) – courts prefer affirmative ouster

The standard of finding constructive ouster is pretty high. Ouster is the exception - not the rule.

Question 13

Carr v. Deking (RULE) (TIC)(farm owners)

Answer 13

Each tenant in common has the right to use, benefit from, and possess the entire property, subject to the equal rights of co-tenants, and may lawfully lease their interest without the consent of the other co-tenants. Co-tenants who do not consent to the lease may seek partition of the property, but cannot eject the lessee who “steps into the shoes” of the lessor.

*note: Generally OK to transfer w/o consent from cotenant but Q whether creditor or other party will be able to enforce; some jurisdictional diff on finer points.

Public policy should prevent prospective lessees from going behind the back of one tenant in common to obtain a more favorable lease from the other.

Question 14

Tenhet v. Boswell (RULE)(JT)(JT dead after 3-month lease)

Answer 14

A partial encumbrance (lease) by a JT does not sever the JT but ends on death - as the right of survivorship prevails and the unities of JT are not destroyed by such a lease.

This is a partial conveyance and therefore the JT is not severed.

Unilateral encumbrances - Yes but when they die, their interest they encumbered dies with them

*note - transfer w/o consent is generally OK, but might sever & jurisdictional diff on finer points.

Question 15

Unilateral Encumbrance

Answer 15

You’ve done something with your property, but it’s not free and clear and you’ve burdened the property. Mortgage loan i.e. you don’t pay it.

Liabilities or burdens taken on by one co-owner.

Question 16

Sawado v. Endo (RULE)(TIE)(car accident damages)

Answer 16

Creditors cannot reach property held in the form of TIE to satisfy debts of one spouse; even if the property is sold or the debtor spouse survives the non-debtor, the creditor has no claim on the estate.

can you have a unilateral encumbrance - it varies but majority of the courts say no.

Question 17

Ark Land Co. v. Harper (RULE)(wants heirs land for coal mining)

Answer 17

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. Evidence of longstanding ownership, coupled with sentimental or emotional interests in the property, may also be considered in deciding whether the interests of the party opposing the sale will be prejudiced by the property’s sale.