Concurrent Ownership Flashcards
Joint Tenancies (on MBE; not in Texas)
Key characteristic: Right of Survivorship
Each joint tenant takes proportional share. As they lose their interest (e.g. die or severance), proportion splits up among the remaining joint tenants.
- interest in land is not transferable or inheritable
e. g. “A, B, and C take with joint tenancy with right of survivorship” means they each get 1/3 undivided interest. As each dies, then it moves to 1/2 undivided interest and then last person gets 100% interest.
Creation of Joint Tenancy:
need all “four unities”
Time: all interests vested at the same time
Title: the grant to all JTs must be by same instrument
Interest: all JTs must take same “type and size” interest
Possession: all JTs have identical rights of possession
Creation of Joint Tenancy; language
Language must clearly express joint tenancy and right of survivorship.
Otherwise, courts construe to tenancy in common
E.g. “To A and B jointly.” No JT. “To A and B as joint owners.” No JT
Destruction of a Joint Tenancy-Severance
Severance occurs when any of four unities are disrupted.
When severance happens, the joint tenancy remains in place except for the joint tenant whose interest was disrupted. That interest becomes a tenant in common.
e.g. If A, B, and C have JT and C sells to buyer, A and B each have 1/3 interest in JT and C has 1/3 interest in TIC. If A dies, right of survivorship still goes to B so B would have 2/3 interest and buyer would still have 1/3 TIC.
Destruction of a Joint Tenancy-Severance
Mortgage
Lien Theory (TX and MBE default): if mortgage executed and lien attached to title, unity is NOT disturbed so JT is NOT severed
Title Theory: if mortgage executed and lien attaches to title, unity is disturbed so JT is severed
Destruction of a Joint Tenancy-Severance
Contract of sale. When does severance happen?
at time K was entered into, not date of closing (bc of equitable conversion)
e.g. if C decides to sell 1/3 undivided interest to buyer, C’s interest is severed at the time of contracting, not closing
Destruction of a Joint Tenancy-Severance
Creditor’s Sale of Interest in the JT:
creditor’s lien not enough to sever. Need a judicial sale to collect on the lien to disturb title.
e.g. if A’s creditor obtains a judgment and gets a lien on A’s interest, it does not sever until there is a judicial sale of the interest
Joint Tenancies in Texas*
Common law JT does not exist in TX, but right of survivorship can be created by agreement between the parties (*don’t look to the 4 unities).
Tenancy in Common
No right of survivorship. It is transferable and inheritable.
Only one unity required: possession
Creating Tenancy in Common
Default tenancy; if JT isnt properly created (4 unities not present/right or survivorship not clear), then a Tenancy in Common is created
Rights and Duties Among Co-Tenants:
Possession
each co-tenant has the right to possess all the property consistent with the other co-tenants right to possess
e.g. they all want to use land at same time
Rights and Duties Among Co-Tenants:
Accountability
A co-tenant in possession has the right to retain profits from her use of the property, but money from rentals or general uses of the land not from co-tenant’s personal use must be split among all co-tenants
Ouster of the other co-tenant(s) by tenant in possession: the latter is required to reimburse them for fair rental value.
Rights and Duties Among Co-Tenants:
Sharing Necessary Expenses
Must other co-tenants contribute for the following?
Improvements (e.g. building house)? No, because it was not necessary.
Necessary repairs (e.g. fixing barn)? yes, if they are necessary
Mortgage on the property? yes, if it was signed by all co-tenants. If just one co-tenant used her share as collateral for a mortgage, other co-tenants do not have to contribute.
Governmentally imposed obligations (e.g. taxes)? yes, all must contribute
Rights and Duties Among Co-Tenants:
Right to Partition
Right is held by every co-tenant regardless of if JT or TIC
Any co-tenant (regardless of his size of fractional share), can ask that property be partitioned either voluntarily or by court order. If:
(a) the property is capable of physical division and lines will be drawn and the parties are no longer co-tenants; or
(b) the property is not capable of physical division and it will be sold with proceeds divided among the fractional owners.
Can be done voluntarily or by court order
Destruction of Joint Tenancy- Severance
Conveyance
Four ways:
Conveyance by one of JTs of his interests severs just the seller’s JT, turning it into a TIC while other JTs continue to hold JT interests.
e.g. A conveys 1/4 JT interest to buyer.
