concurrent ownership Flashcards
what are the types of co-ownerhsips/ co-tenancies
tenancy in common, joint tenancy, and tenancy by the entirety
what is a tenancy in common, and what rights to the whole does each tenant hold
its the one the law presumes; and its when each co tenant holds an interst in the property that is freely alienable (transferable) and descendible (can be inhereted)
each person owns a seperate, but undivited inteerst in the whole of the property and can excerise rights over the whole property, regardless of the proportional share that the tenant holds
can a tenant in common preclude another from excersisng rights to the property
no
what does it mean when we say that a TIC can own unequal shares in the property
in accordanc with the interest that a tenant in common holds in property, he has a right to a proportional share of the fincial beneifits that the property prodcues
does TIC have survivorship rights
NO! this is what sepereaes a TIC and a joint tenancy!
what happens when one of the co tenants dies in a TIC?
their share goes to his will or heirs
how do you create a tenancy in common
there must be a transfer of property rights resulting in more than one person holding title to the property AT THE SAME TIME
what can creditors reach in a tenancy in common?
only the proprotional share of the that specfic tennat in common
so if bill owns 10 percent, chris 40 and abe in 50, all in a TIC. if bill owes creditors more than his 10 percent share, then the creditor can satisfy the debt by forcing the sale of bills 10 percent share ONLY
what is concurrent ownerhsip
when more than one person holds a present interst in the same land AT THE SAME TIME
what is a joint tenancy
same as TIC excpet it has right of survivoship
how is a joint tenancy created (PITT)
posession: each tenant must have a right to posess the whole just like TIC
interest: each tenant holds an identical interest (all interst represent the same duration and EQUAL shares) – diff from TIC that allow for unequal shares
time= each tenant’s interest must be aquired at the same time
title: each tenant must take his or her interest through the same insturment; the instrument must specfiy in clear terms that the interest is to be hled as a JT or has a right of surviorship
what does it mean that JT has a right of surviorship
when one tenant dies, the remaining joint tenants hold title to what had formally been the decedents share of the JT
what rigths to creditors have as to JT
creaditors of a joint tenant can reach only the propotian share that the joint tenant holds
what happens if a creditor satisfies the debt of a joint tenant by taking the joint tenant’s share of the joint tenancy
the creditor becomes a tenant in common with the other co-tenants in the property
due on sale clause
ask about this
what is the rule for severance by joint tenacy
any joint tenant may unilaterally sever their interst from the JT, to create a TIC
what is a tenancy by the entirty
avaible only to married couples and only a minority of states recognizr it
how is a tenancy by the entirty created
the same requirements for JT (PITT) and the couple must be married AT THE TIME of the convvyence creating the tenancy by the entirty
what are the survivorship rights in a tenancy by the entirty?
each spouse has a right of surviorship in property held in the tenancy
when can a tenancy by the entirety be severed? is unilateral transfer allowed?
it cant be severed except via divorce and unilateral transfer is not possible
what are creditor rights as to tenancy by the entirity
jurisdictions that recognize this concurrent ownership provide protections against creditors
this happens when one spouse incurrs debt independent of the other spouse
what happens when a deed does not clearly create a JT, what is the presumption
TIC
hoover v smith: Does “not as tenants in common” create survivorship rights?
issue: Under Virginia law, is there a right of survivorship between joint tenants if it does not manifestly appear from the instrument that the parties intended to establish a right of survivorship?
there is no right of survivorship between joint tenants, unless it manifestly appears from the instrument that the parties intended to establish a right of survivorship.
estate of kappler: “tenants by the entireties” for unmarried couple
issue: what is the effect of a purported conveyence to two people as husband and wife when they were not yet married?
you must be married at the time of convyence to create a tenancy by the entirety
ansent an express delcaraion that thre is to be a JT a TIC is created
estate of reigle: “tenants by the entireties” for mother and son
because they were more clear in the intent for a right to surviorhsip, a tenancy by the entireity was created even though they are mother and son
how can a joint tenant sever the joint tenancy
either by conveying her interst or by entering into an agreement with the other joint tenant that specfies the interests are to be held in TIC
it can also be severed via murder
how can a joint tenant sever the joint tenancy without the consent or knowlege of the other joint tenant
through a strawman; which is a person who is the recipeant of the Jt’s transfer, who then immediatly transfers the interst back
how does a strawman work
a and B are JT. B conveys his interst to c (the strawman), which severs the JT, and c conveys the TIC back to B.
what is the common law rule on strawmams
you cant severe a JT without use of a strawman
riddle v Harmon
riddles take title as JTs
months before her death, wife finds out about the right of survipriship, and requests JT to be severed
she didnt use a strawman but did a unilateral transfer
issue: is this allowed?
the court here doesnt follow the common law requiremnt for a strawman for a severance of a Jt; the court knew what she was trying to do and allowed it
what does it mean to have a partition with a TIC or JT
what are the three types of partions
a division of the land according ot the proprotional share that each co tenant holds
its when youre seeking to destroy the co-tenancy
- partiion in kind - the land is divifed into parcels and assinged to the co-temamts (ie physical divison)
- partition in sale – the land is sold and the proceeds are divided between the co tenants
what kind of partion do courts prefer at common law
partition in kind because individual co tenants may attach sentimental value to the physical land which the market does not recognize in a partition by sale
if the division is impossible, impractical or inequitable, whcih type of partition do courts employ
partition by sale
delfino v vealencis: P seeking a partion by sale, they own a 99/144 interst
D occupies the dwelling and operates a garbage removal business
P wants to develo[ the property and D is opposed because they live there
what does the court grant and why
courg goes with partition in kind because of the Ds personal attachment to the propertu (ie lives there and runs a business)
this is an outlier case, partiiom in kind is usually given the legal presummption
what lang makes a conveyance a life estate and not a JT
‘for your joint lives’ = present interst in a life estate
conveying the full estate to both at the same time with a right of surviorship= jt
what kind of protections to a TIC an JT offer for the co-tenants as against creditors
usually none; a creditor can attach a lein to, or compel the transfer of the contenants interest in the co-tenancy in order to satisfy the debt
what kind of protections to a tenancy by the entirety offer for co-tenants as against creditors
a general creditor of a spouse can not reach tenancy by the entirety property
what is ouster
when a co-tenant in possession prevents another co -tenant from possessing or using property
what is contribution and when it is required of a co-tenant
when a tenant spends money on the property and requests reimbursement from the other co-tenants
it may be required if the money asking to be reimbursed is based on if it was a carrying charge, a mortgage principal or improvements and repairs
what is a carrying charge (in relation to contribution)
an expense related to a use of the premises that does not produce income ie like property taxes and mortgage interest
what is a mortgage principal (in relation to contribuion)
a co-tenant who pays a mortgage principal amount that is due is entitled to contribution
are co-tenants entitled to any contributions for unessary imrovments?
no, but they can be taken into account at the sale or partition of the property
what is accounting (in relation to contribution)
a co-tenant can compel the other co-tenants to account for, and share in, the net profits that come from leasing or renting the property
when does the doctrine of ouster arise
when an accounting for rent by a co-tenant not in possession from a co-tenant who is in possession and
adverse possession
which ownerhisp estate requires equal shares to the whol
JT! TIC doesnt need this
if the type of concurrent ownership is ambiguous, what is presumed
that it is a TIC
what are the usual ways that a JT is severed
parttition , transfer, and sometimes mortgage
