Concurrent Ownership - Feb. 2 Flashcards
What is concurrent ownership? (Barros)
Concurrent ownership is the idea that two or more people own a property interest at the same time. (197)
Ex: The conveyance of Blackacre “to A and B.”
What are three concurrent interests in common use in the US today? (Barros)
Three concurrent interests in common use in the US today are: the tenancy in common, the joint tenancy, and the tenancy by the entirety. (197)
O grants Blackacre “to A and B.” What kind of concurrent interest is this an example of? (Barros)
A and B own Blackacre as tenants in common. (197)
(More specifically, they own Blackacre in fee simple absolute as tenants in common)
Is there a limit to the number of people that can be tenants in common? (Barros)
No. (197)
Do tenants in common need to have equal shares? (Barros)
No. (198)
Ex: O grants Blackacre “to my son, A, who will take a one-half share, and my grandchildren, B and C, who each will take a one-quarter share.” A, B, and C are tenants in common. A has a one-half share. B and C each have one-quarter shares.
What is highly fractioned ownership? (Barros)
When a parcel of property is owned by many people, each of whom owns a relatively small fraction of the whole. (199)
What does having an undivided share mean? (Barros)
This means that each co-tenant has the right to possess and use the entire property. (199)
If I have a 1% interest and you have a 99% interest, can you exclude me from the property? (Barros)
No. (199)
What is partition? (Barros)
Partition is the process in which the court will terminate a co-tenancy. (199)
What are two types of partition? (Barros)
Partition in kind and partition by sale. (Barros)
What is partition in kind? (Barros)
Partition in kind involves a physical division of the property between the former co-tenants. (199)
What is partition by sale? (Barros)
Partition by sale involves a sale of the property at auction, with the proceeds divided among the co-tenants according to their shares. (199)
What three factors for partition by sale were put forward by the Supreme Court of Appeals of West Virginia in the Ark Land Co. v. Harper case? (Q)
(1) Partition in kind is not convenient;
(2) The sale will result in the promotion of at least one of the parties’ interests; and
(3) The sale will not prejudice the interests of the other parties. (Ark Land Co. v. Harper)
When will the courts find ouster? (Barros)
Most courts will find ouster only if (a) the co-tenant out of possession has demanded entry or shared possession of the co-owned property, and (b) the co-tenant in possession has refused. (216)
Why is ouster important? (Barros)
Ouster is important because the rules on the liability of co-tenants to each other for rent and contribution for expenses turn in part on whether there has been an ouster. Ouster is also important because if one co-tenant ousts the other, it starts the adverse possession clock running against the ousted tenant. If the ousted co-tenant does not bring an action to assert her interest within the statutory period, the ousting co-tenant may obtain her interest by adverse possession. (216)
What is a right of survivorship? (Barros) (Studicata)
Right of survivorship means that if A and B own Blackacre as joint tenants and A dies, A’s share disappears, leaving B the sole owner of Blackacre. (219)
Upon the death of one joint tenant, the surviving joint tenants take the deceased cotenant’s property interest.
What are the four unities that are required for the creation of a joint tenancy? (Barros)
Time, title, interest and possession. (221)
Possession
Interest
Time
Title
In regards to the creation of a joint tenancy, what does time mean? (Barros)
Time means the joint tenants must acquire their interests at the same time. (221)
In regards to the creation of a joint tenancy, what does title mean? (Barros)
Title means the joint tenants must acquire title from the same instrument. (221)
In regards to the creation of a joint tenancy, what does interest mean? (Barros)
Interest means the joint tenants must have equal shares in the property. (221)
In regards to the creation of a joint tenancy, what does possession mean? (Barros)
Possession means the joint tenants must have equal rights of possession and use. (221)
In regards to the creation of a joint tenancy, what is a straw person? (Barros)
A straw person is a person—for example, a paralegal in A’s lawyer’s office—who holds title temporarily as a convenience to another party. (222)
Ex: A owns Blackacre. A wants to create a joint tenancy in Blackacre between herself and her daughter, B.
A conveys Blackacre to Straw Person.
Straw Person conveys Blackacre “to A and B as joint tenants with right of survivorship.”
What happens if a joint tenancy is severed? (Barros)
If a joint tenancy is severed, the joint tenancy relationship is terminated. Joint tenancies are easy to sever. (223)
Who can sever a joint tenancy? (Barros)
Any joint tenant can unilaterally sever the joint tenancy by conveying her interest to a third party. (223)
Ex: A and B own Blackacre as joint tenants:
B conveys her interest to C. This conveyance severs the joint tenancy and creates a tenancy in common between A and C.
What is the title theory of mortgages? (227)
Title theory of mortgages is where the granting of a mortgage is viewed as a conveyance of title to the lender. (227) Minority View
What is the lien theory of mortgages? (227)
Lien theory of mortgages is where the granting of a mortgage is viewed as the granting of a lien (i.e., a security interest) to the lender. (227) Majority View
What rights do those in a tenancy in common have? (Studicata)
Each tenant in common has the right:
(a) To possess and enjoy the ENTIRE property;
(b) To sell, mortgage, lease or otherwise transfer all or part of their interest in the property without consent of the other cotenants (does not terminate the tenancy in common); AND
(c) To transfer their interest in the property freely at death (without a right of survivorship, a tenant in common may devise his interest by will or allow it to descend by intestate succession).
What is a joint tenancy? (Studicata)
A joint tenancy is a conveyance of real property to two or more people that differs from a tenancy in common in that each joint tenant holds a right of survivorship.
Can joint tenants pass their property interest by will or intestate succession? (Studicata)
No. (when a joint tenant dies, their property interest automatically passes to the other joint tenants).
JT love triangle
Can tenants in common pass their property interests by will or intestate succession? (Studicata)
Yes.
How can a person create a joint tenancy? (Studicata)
To create a joint tenancy, the grantor must makes a clear expression of intent to create a joint tenancy and use “survivorship language” (e.g., O conveys Greenacre “to A and B as joint tenants with a right of survivorship”).
