Concurrent Ownership Flashcards
What is a Tenancy in Common/characteristics?
two or more person own the same property at the same time. Each owns the right to possess the entire property
- Individual interests transferable (don’t know have to have notice or consent from co-owners)
- Individual creditors can reach→ ind. Creditors become tenants in common.
- Individuals can force partition(judge divides up)
a. Physical (you get East, I get West)
b. Sale (Court ordered) - No right of survivorship: share doesn’t go to other tenant, goes to estate
How is TIC created?
- Can be unequal shares
- Must be in unity of possession: named tenants have equal rights to possession in the whole (no geographic division in ownership)
- No limit in number of people
- This is form the law presumes where the word of the deed are not clear.
What is a Joint Tenancy/Characteristics?
Characterized by Right of Survivorship
- Individual interests transferable→ converts to a tenancy in common if transferred (no right of survivorship)
- Individual creditors can reach
- Individuals can force partition (physical or sale)
ISSUE: possibility of secret severance. (unilateral severance by self-conveyance) turning it into TiC
How can you change a JT to a TIC
- Destruction of unity
2. Individual or joint conveyance
How to create Joint tenancy?
- Must be explicit (O to A and B jointly)
- 4 unities: Created 1) at same moment in time, 2) by the same title, 3) with equal interest and 4) equal right of possession
a. Terminates to specific person if any one unity is destroyed by them
What are the rights and obligations of TIC and JT?
- Obligation of tenant not in possession to tenant in possession
ii. Obligation for tenant in possession to tenant not in possession
iii. Significant improvements by tenant in possession
What are the obligations of tenant not in possession to tenant in possession (TC/JT)
a. Taxes and assessments- must pay share
b. Preexisting mortgage- must pay share if prior to contenancy
c. (Modern View) Ordinary repairs (must be reasonable)
d. Insurance on property
What are Obligations for tenant in possession to tenant not in possession? (TC/JT)
- Waste
- Rents or profits actually received must be shared
- If ouster (tenant not in possession not allowed to exercise equal right to possession), owes fair market rental value
a. Courts prefer constructive ouster to physical ouster
How Significant improvements by tenant in possession affect TC and JT?
- No right to contribution by tenant not in possession. If B lives on property all year long he owes A nothing.
- At partition or accounting, will get credit or set off value (amount put in + increase in value)
How can you terminate a TIC and JT?
- Partition without court if parties agree
2. Joint conveyance
What is a Tenancy by Entirety?
- Only for married couples. Individual interests not transferable→ NO secret severance this is why married couples like it. However, you can transfer w/ consent of both parties.
- Individual creditors cannot reach
- Partition is unavailable . Can sever by divorce
- Right of Survivorship
- Historically, never an issue with contribution or accounting
a. Husband had right of coveture (husband controlled use and possession) NOT ANYMORE.
How do you create a TBE?
- Must be explicit (modern view)
- Only applies to husband and wife
- 4 unities must exist. 1) at same moment in time, 2) by the same title, 3) with equal interest and 4) equal right of possession
What are the 4 unities?
1) at same moment in time, 2) by the same title, 3) with equal interest and 4) equal right of possession
How does TIE terminate?
- Divorce
- Death
- Joint creditors or joint conveyance
Spouse Rights: Community Property During Marriage
a. Separate property becomes common property, with the exception of gifts and inheritance. Property acquired before marriage not community property.
b. Each party a tenant in common on all community property
i. Must have signature of each party in order to convey property
C. Homestead Protection: Prevents ind. Creditors from reaching ind. Spouses interest. Ind. Interests are not transferrable, can’t convey land or business because you own in together.
Spouse Rights: Community Property Death/Divorce
Divorce
i.50/50 split of all community property. Everything except gifts and inheritance.
Death
i. Survivor retains all of individual separate prop. and half of communal property
ii. Takes statutory share of deceased’s estate if intestate
iii. takes elective statutory share of estate if will
Spouse Rights: Common law(seperate property) during Marriage
a. Non-marital property remains separate after marriage
b. Marital property (acquired after marriage) is communal except gifts and inheritance
c. Form of title controls ownership of property (allows husband and wife to decide). Can hold in joint tenancy, tenancy in common, etc.
*Homestead applies state by state
Spouse Rights: Common Law After Marriage
Divorce
i. Divide marital property 50/50, non-marital not factored in unless transmutation(deed it) occurs (indiv. prop. became marital prop)
At Death
i. Survivor retains individually titled property
ii. All deceased spouse’s property goes to their estate
iii. If intestate, takes statutory share. Ex. Wife get shit after death w/ no will. Things owned together go to remaining spouse.
iv. If will, you can take elective statutory share of will
-bitch usually receives at least 1/3 of equity
What are rights to non-married partners?
i. Common Law Marriage not recognized in all states
ii. Bottom line→palimony= nothing special in cohabitating
1. Can still form express or implied contract (marvin)
a. Cannot be formed for sexual favors
2. Can also form a partnership; shares of ownership generally even
a. Joint venture: shares generally uneven. We can own different portions.
3. Equitable Remedies
What is Quantum Meruit: Equitable remedy(nonmarried)
Definition: What is deserved, merited; the fair market value of the services provided minus the benefits and compensations. Reasonable value of work.
What is Constructive Trust: Equitable remedy(nonmarried)
Created by court to benefit the party wrongfully deprived regardless of the intent of the parties. Implied to prevent unjust enrichment or fraud relating to a mutual agreement or understanding
What is Resulting Trust: Equitable Remedy (nonmarried)
Mutual effort or activity in order to prevent unjust enrichment. Created by the court when it was the intention of the parties to create one.
