Concurrent Ownership - Feb. 2

Question 1

What is concurrent ownership? (Barros)

Answer 1

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.”

Question 2

What are three concurrent interests in common use in the US today? (Barros)

Answer 2

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)

Question 3

O grants Blackacre “to A and B.” What kind of concurrent interest is this an example of? (Barros)

Answer 3

A and B own Blackacre as tenants in common. (197)

(More specifically, they own Blackacre in fee simple absolute as tenants in common)

Question 4

Is there a limit to the number of people that can be tenants in common? (Barros)

Answer 4

No. (197)

Question 5

Do tenants in common need to have equal shares? (Barros)

Answer 5

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.

Question 6

What is highly fractioned ownership? (Barros)

Answer 6

When a parcel of property is owned by many people, each of whom owns a relatively small fraction of the whole. (199)

Question 7

What does having an undivided share mean? (Barros)

Answer 7

This means that each co-tenant has the right to possess and use the entire property. (199)

Question 8

If I have a 1% interest and you have a 99% interest, can you exclude me from the property? (Barros)

Answer 8

No. (199)

Question 9

What is partition? (Barros)

Answer 9

Partition is the process in which the court will terminate a co-tenancy. (199)

Question 10

What are two types of partition? (Barros)

Answer 10

Partition in kind and partition by sale. (Barros)

Question 11

What is partition in kind? (Barros)

Answer 11

Partition in kind involves a physical division of the property between the former co-tenants. (199)

Question 12

What is partition by sale? (Barros)

Answer 12

Partition by sale involves a sale of the property at auction, with the proceeds divided among the co-tenants according to their shares. (199)

Question 13

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)

Answer 13

(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)

Question 14

When will the courts find ouster? (Barros)

Answer 14

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)

Question 15

Why is ouster important? (Barros)

Answer 15

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)

Question 16

What is a right of survivorship? (Barros) (Studicata)

Answer 16

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.

Question 17

What are the four unities that are required for the creation of a joint tenancy? (Barros)

Answer 17

Time, title, interest and possession. (221)

Possession
Interest
Time
Title

Question 18

In regards to the creation of a joint tenancy, what does time mean? (Barros)

Answer 18

Time means the joint tenants must acquire their interests at the same time. (221)

Question 19

In regards to the creation of a joint tenancy, what does title mean? (Barros)

Answer 19

Title means the joint tenants must acquire title from the same instrument. (221)

Question 20

In regards to the creation of a joint tenancy, what does interest mean? (Barros)

Answer 20

Interest means the joint tenants must have equal shares in the property. (221)

Question 21

In regards to the creation of a joint tenancy, what does possession mean? (Barros)

Answer 21

Possession means the joint tenants must have equal rights of possession and use. (221)

Question 22

In regards to the creation of a joint tenancy, what is a straw person? (Barros)

Answer 22

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.”

Question 23

What happens if a joint tenancy is severed? (Barros)

Answer 23

If a joint tenancy is severed, the joint tenancy relationship is terminated. Joint tenancies are easy to sever. (223)

Question 24

Who can sever a joint tenancy? (Barros)

Answer 24

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.

Question 25

What is the title theory of mortgages? (227)

Answer 25

Title theory of mortgages is where the granting of a mortgage is viewed as a conveyance of title to the lender. (227) Minority View

Question 26

What is the lien theory of mortgages? (227)

Answer 26

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

Question 27

What rights do those in a tenancy in common have? (Studicata)

Answer 27

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).

Question 28

What is a joint tenancy? (Studicata)

Answer 28

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.

Question 29

Can joint tenants pass their property interest by will or intestate succession? (Studicata)

Answer 29

No. (when a joint tenant dies, their property interest automatically passes to the other joint tenants).

JT love triangle

Question 30

Can tenants in common pass their property interests by will or intestate succession? (Studicata)

Answer 30

Yes.

Question 31

How can a person create a joint tenancy? (Studicata)

Answer 31

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”).