Concurrent Ownership Flashcards
Tenancy in common (TIC)
Joint tenancy with right of survivorship (JTWRS)
Tenancy by entirety (TBE)
three general types of concurrent ownership
Property is co-owned by multiple persons, each of whom holds an undivided, fractional interest
Key characteristic of Concurrent Ownership
Each co-owner has the right to use and possess the entire property, not just a portion of it
Key characteristic of Concurrent Ownership
Grantor conveys “to Phil and Claire” or “to Phil and Claire as tenants in common”
Tenancy in Common
Has an undivided, fractional interest in the property
Has the right to use and possess the entire property
May transfer, sell or devise his interest to another person (unless prohibited by written agreement among the tenants in common)
Tenancy in Common
alienable, devisable, and descendible
Tenancy in Common
Default created concurrent ownership
Tenancy in Common
Grantor conveys “to Phil and Claire, as joint tenants with the right of survivorship and not as tenants in common”
Joint Tenant Right of Survivorship
An undivided, fractional interest in the property
The right to use and possess the entire property even though he only owns a fractional interest
A right of survivorship
Joint Tenant Right of Survivorship
are NOT devisable or descendible
Joint Tenant Right of Survivorship
A ________ ___ _______ is when one dies, his interest is removed and the remaining joint tenant automatically becomes the sole owner
right of survivorship
Joint tenancy is only created if all _____ _____ are present
four unities
Time:
Title:
Interest:
Possession:
Four Unities for Joint Tenant Right of Survivorship
all joint tenants must acquire their interests at the same time
Time: Four Unities
all joint tenants must acquire title by the same instrument
Title:Four Unities
all joint tenants must have the same ownership share, equal in size and duration
Interest: Four Unities
all joint tenants must have an equal right to possess, use, and enjoy the whole property
Possession: Four Unities
If one joint tenant transfers his interest:
The joint tenancy is severed as to that interest
The right of survivorship is destroyed
The grantee becomes a tenant in common with the other owners
Joint tenancy can be severed unilaterally by any joint tenant
Severance of Joint Tenancy
A lease entered into by one joint tenant ____ ____ sever the joint tenancy
does not
When one joint tenant dies, the other joint tenant obtains _____ ownership of the property by her right of survivorship
sole
A lease entered into by one joint tenant is ___ __________ against the other joint tenant
not enforceable
Grantor conveys the house to “Phil and Claire Dunphy, as tenants by the entirety”
Tenancy by the Entirety
Only married couples can hold property
Tenancy by the Entirety
Each has an undivided right to use and possess the whole property and the right of survivorship
Tenancy by the Entirety
can only be ended by death, divorce, or agreement of both spouses
Tenancy by the Entirety
Neither spouse may sell or encumber his/her interest independently of the other
Tenancy by the Entirety
Ambiguity is resolved in favor of a
tenancy in common
the division of the land held in co-tenancy (i.e., tenancy in common or joint tenancy) into the co-tenants’ respective fractional shares
Partition
If the land cannot be fairly divided, then the entire estate may be sold and the proceeds appropriately divided
Partition
Common law expresses a preference for ______ __ ____ (unless physical partition is impractical)
partition in kind
In kind (physically dividing the land) By sale (selling the land and distributing the proceeds)
Two types of partition:
Tenants in common and ________ ______ may voluntarily agree to partition a property
joint tenants
Courts will generally ________ written agreements against partition (if reasonable in duration and purpose)
enforce
the presumption in favor of _______ _______ can be overcome by showing that:
(1) “the property cannot be conveniently partitioned in kind”
(2) “the interests of one or more parties will be promoted by the sale”
(3) “the interests of the other parties will not be prejudiced by the sale”
physical partition
An action to compel another to share the rents and profits derived from the leasing or use of the property
Actions of One Cotenant Against Another
Accounting
An action in which one cotenant seeks reimbursement for payment of expenses paid for the operation or maintenance of the property
Actions of One Cotenant Against Another
Contribution
An action for division of the property into the cotenants’ respective fractional shares
If the property cannot be fairly divided (an “in kind” partition), the property may be sold and the proceeds appropriately divided (partition by sale)
Actions of One Cotenant Against Another
Partition
An _______ occurs when a cotenant in possession of the property refuses to allow another cotenant to occupy the property
_________ requires an act of exclusion
exclusive possession alone does not constitute ______.
ouster
Unless there has been an ouster, a cotenant in possession does not owe any rent to a cotenant not in possession
Rules of Contribution for Cotenants
Rent
Each cotenant is responsible for payment of his pro-rata share of mortgage payments, real estate taxes, insurance
A cotenant who pays more than her share can recover the excess:
By bringing an action for contribution against the other cotenant(s), or
By receiving a credit in an accounting or partition action
Rules of Contribution for Cotenants
Carrying Cost
Split among jurisdictions regarding maintenance and repairs:
In some jurisdictions no contribution is required whatsoever
In other jurisdictions contribution is required only for necessary maintenance and repairs
In an accounting or partition action, a cotenant who makes repairs or performs maintenance is entitled to receive a pro-rata credit for the amount paid
Rules of Contribution for Cotenants
Maintenance, repairs and improvements
No contribution is required whatsoever
In an accounting or partition action, the cotenant who makes improvements is entitled to keep the added value or additional profit made as a result of the improvements
Rules of Contribution for Cotenants
For improvements (e.g., construction of a new building):
requires an act of exclusion
ouster
(1) “the property cannot be conveniently partitioned in kind”
(2) “the interests of one or more parties will be promoted by the sale”
(3) “the interests of the other parties will not be prejudiced by the sale”
Favoring Partition in Kind
Each cotenant is entitled to a pro-rata share of all rents and profits from the property
Includes:
Rent received from tenants
Profit received from the harvesting or sale of natural resources (cutting of timber, mining of coal, drilling for oil, etc.)
Rules of Contribution for Cotenants
Right to Share in Profits
Because the tenant in common can voluntarily transfer his interest, a _________ can attach to that tenant’s interest (but not to the interests of the other tenant(s) in common)
Creditor
Tenancy in common or Joint Tenancy
