Concurrent Tenancies Flashcards
what are the tenancies in order from least to most intertwined
TIC
JT
TBE
does TIC have right of survivorship
no
what’s the default form of common ownership if ambiguity
TIC
what 4 unities does JT require
time
title
interest
possession
what’s the key feature of JT
right of survivorship
what happens if a JT sells his share
disrupts the 4 unities
previous JTs are unchanged, but new guy is now a TIC with the remaining JTs
what are the kinds of partition for JT
partition by voluntary agreement
partition in kind
forced sale
why are ITs disfavored
avoids probate
what are the rules for leasing for JTs
California approach (minority) - JT can lease interest but it’s like a life estate
other jdx - JT leasing the interest reverts the JT and makes it a TIC
wait and see - if JT dies while lease is active, right of survivorship is severed. if lease expires and then JT dies, we all good
who is TBE for
married couples
does TBE have right of survivorship
sure does
how can TBE be severed
death or divorce
do all jdx allow TBE?
no - about half have it.
some presume TBE for married couples, some presume TIC
does a co-tenant in exclusive possession have to pay rent to absent co-tenant
no
does AP work for co-tenants
no – because not hostile
can co-Ts commit waste
no no and no
do JT and TIC have right to bring in action for partition?
yes - voluntary, in kind, or forced sale
what do you need for ouster
affirmative action (changing locks) OR constructive ouster (people literally can't live together)
what are some approaches for ouster
Massachusetts - rebuttable presumption of ouster
New Mexico - have constrictive ouster but burden is on leaving spouse to prove they were forced out
