Cotenancy

Question 1

Concurrent Estate

Answer 1

When two or more persons share concurrently an interest in real property.

Question 2

Who is a Co-Tenant?

Answer 2

A concurrent owner.

Question 3

Types of Concurrent Ownerships

Answer 3

Include:

• Tenancy in common
• Joint tenancy
• Tenancy in the entirety

Question 4

Tenancy in Common

Answer 4

Where each co-tenant owns an undivided interest in the whole of the property with no right of survivorship.

Question 5

Tenancy in Common: Words of Creation

Answer 5

Tenancy in common is the presumed form of co-tenancy. Therefore, no special words are required to create a tenancy in common.

Question 6

Tenancy in Common Unities

Answer 6

A tenancy in common only requires unity of possession.

Question 7

Unity of Possession

Answer 7

Means that each tenant in common has the right to possess the whole of the property.

Question 8

Tenancy in Common: Transferring the Interest

Answer 8

A tenant in common may transfer his interest inter vivos:

• voluntarily through a transfer of a the property intert; or
• involuntarily, through a foreclosure on a mortgage of the tenant’s interest or an execution of a judgment creditor’s lien on the tenant’s interest in the property.

Question 9

Tenancy in Common: No Right of Survivorship

Answer 9

Tenants in common do not have a right of survivorship. Therefore, a tenant in common may devise the interest, and the interest of a tenant in common may also descend by intestacy.

Question 10

Joint Tenancy

Answer 10

A form of concurrent ownership where each co-tenant owns an undivided interest in the whole of the property and has a right of survivorship.

Question 11

Joint Tenancy: Words of Creation

Answer 11

“to A and B as joint tenants and not as tenants in common, with full right of survivorship.” One must use language to demonstrate that they want the right of survivorship attached to the grant.

Question 12

Joint Tenancy Unities

Answer 12

Joint tenancy requires 4 unities:

• The unity of time
• The unity of title
• The unity of interest
• The unity of possession

Question 13

Unity of Time

Answer 13

Joint tenants must take at the same time

Question 14

Unity of Title

Answer 14

Joint tenants must take by the same instrument

Question 15

Unity of Interest

Answer 15

Joint tenants must take equal shares of the same type (e.g. each joint tenant takes a legal fee simple).

Question 16

When a Sole Owner Wants to Create a Joint Tenancy Involving Himself (Traditional v. Modern)

Answer 16

(Traditional rule)- a sole owner of property cannot create a joint tenancy between himself and another person (because ot the unities of time and title). Therefore, owner would have to give property to a strawman who would then convey property back to owner and another person.

(Modern rule)- The unities of time and title do not prevent a sole owner from conveying a joint tenancy between himself and another.

Question 17

Joint Tenancy: Right of Survivorship

Answer 17

At the death of one joint tenant, the interest of the surviving joint tenant “grows” and absorbs the interest of the deceased joint tenant. Therefore, a joint tenant’s interest cannot pass on to devised by will or passed down via intestacy.

Question 18

Joint Tenancy: Transferring the Joint Interest

Answer 18

A joint tenant can transfer his interest voluntarily or involuntarily. But keep in mind that this will sever the joint tenancy (unities of time and title), creating a tenancy in common.

Question 19

Effects of Mortgages on Joint Tenancy

Answer 19

(Mortgages jointed by all joint tenants)- will not affect joint tenancy.

(Mortgages from only one joint tenant)- will depend on title theory or the lien theory of mortgages.

Question 20

Title Theory of Mortgages

Answer 20

The execution of a mortgage by one joint tenant causes the legal interest of that co-tenant to be transferred to the creditor/mortgagee (they receive legal title upon execution of mortgage). Therefore, the joint tenancy is severed (unities of time and title are destroyed).

Question 21

Lien Theory of Mortgages

Answer 21

The creditor/mortgagee only receives a lien on the property. Therefore, there is no severance when the mortgage is made. Severance will only occur upon foreclosure (when the mortgagee/creditor receives legal title).

Question 22

What Happens in a Lien Theory State When the Mortgagor Dies Before Creditor Forecloses?

Answer 22

The surviving joint tenant will take the property by right of survivorship and free the property of the mortgage interest.

Question 23

Effects of Leases on Joint Tenancies

Answer 23

Jurisdictions are split on whether a lease severs a joint tenancy.

• CL/majority rule- a lease is treated as a conveyance of RP, thus severing the tenancy.
• Minority rule- holds that a lease does not sever the tenancy.

Question 24

If a Lease Severs a Joint Tenancy

Answer 24

• The leasing joint tenant’s share would be subject to the lease and would survive death.
• But remember that because the non-leasing joint tenant would still have a right to possess the whole, the new leasing tenant would not be able to exclude this other joint tenant from possessing the property.

Question 25

If a Lease Does Not Sever a Joint Tenancy

Answer 25

Then the leasing joint tenant would not be able to give rights that are greater than what they own (e.g. rights after death). Therefore, upon death of the landlord tenant, the remaining joint tenant can receive the property free of the lease.

Question 26

Effect of Partition Filings on Joint Tenancy

Answer 26

The filing of a complaint for partition does not result in the severance of the JT. It is only when property is actually partitioned –> JT is severed. Therefore, the right of survivorship will attach if joint tenant dies prior to that time.

Question 27

Tenancy by the Entirety

Answer 27

A form of concurrent ownership reserved for married couples, which gives each spouse an undivided interest in the whole of the property and a right of survivorship. Does not exist in community property states.

Question 28

Tenancy by the Entirety: Words of Creation

Answer 28

“to H and W as tenants by the entirety and not as joint tenants or tenants in common, with full right of survivorship.”

Question 29

Tenancy by the Entirety: Statutory Presumptions

Answer 29

Today, most states have enacted statutes creating a presumption of tenancy by the entirety if a conveyance is made to a married couple (even if they are not identified as such in the deed).

Question 30

Tenancy By Entirety: What About Previously Acquired Property?

Answer 30

A tenancy by entirety does not arise subsequent to marriage when the conveyance of property was made prior to their marriage.

Question 31

Tenancy by the Entirety: Transferability

Answer 31

An interest in the property can only be conveyed jointly. Any attempt by one spouse to unilaterally convey or encumber their interest in the property will be considered void.

Question 32

Transfer by the Entirety: Rights of Creditors

Answer 32

• A judgment creditor may only execute on property held as a tenancy by the entirety to enforce the judgment if both spouses are joint debtors.
• Entireties property cannot be subject to process petition, levy, execution, or sale for the debts of one spouse.

Question 33

Tenancy by the Entirety: Severance

Answer 33

Tenancy by entirety cannot be terminated by the unilateral act of either spouse. Severance requires:

• Joint conveyance of both spouses; or
• A conveyance of one spouse to the other of the property; or
• Divorce

Question 34

Partition

Answer 34

When you divide a piece of property into individual parts. Each co-tenant has the right to seek partition of the property. Can be voluntary or involuntary.

Question 35

Voluntary Partition

Answer 35

Usually accomplished by an exchange of mutual deeds among co-tenants or by the sale of the property and division of the proceeds.

Question 36

Involuntary Partition

Answer 36

Accomplished by a court action. Can be either in-kind between co-tenants (physical division) or by sale (where one co-tenant pays the other).

Question 37

Rights and Duties of Co-Tenants:

Answer 37

Includes the rights to:

• possession
• profits
• expenses

Question 38

Rights and Duties of Co-Tenants: Possession of the Whole

Answer 38

Each co-tenant is entitled to possess the whole property. If a co-tenant is denied possession they can bring a suit for damages and/or ejectment.

Question 39

Rights and Duties of Co-Tenants: Profits

Answer 39

• If a profit is produced by one of the co-tenant’s efforts, then the other co-tenants have no right to share in those profits (unless they have been ousted from property).
• If a profit is generated by a third party (e.g. rent), then all co-tenants are entitled to a proportionate share of the profits.

Question 40

Wrongful Ouster Among Co-Tenants

Answer 40

When one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part of the jointly held property.

Question 41

Rights and Duties Among Co-Tenants: Expenses

Answer 41

Can involve:

• taxes/mortgage payments
• repairs
• improvements

Question 42

Rights and Duties Among Co-Tenants: Taxes/Mortgage Payments

Answer 42

Each co-tenant must pay a proportionate share of taxes/mortgage payments.

Question 43

Rights and Duties of Co-Tenants: Contribution for Repairs

Answer 43

• The modern/majority rule is that contribution may be compelled for necessary repairs if the repairs were requested by the repairing tenant and refused by the others.
• The CL/minority rule is that such contribution is not permissible.
• But in a partition suit or an accounting suit, the costs of repairs may be credited in favor of a co-tenant who repairs.

Question 44

Rights and Duties of Co-Tenants: Contribution for Improvements

Answer 44

A co-tenant has no right to seek a contribution or setoff for improvements made to the premises unless if the property is sold, any amount attributable to the improvement goes to the tenant who made the improvement.