I. ESTATES IN LAND C. CONCURRENT OWNERSHIP

Question 1

1. Joint Tenancies (JT)
   a. Key characteristic:
   b. Creation of a Joint Tenancy

TX?

“To John, Paul, Ringo and George as joint owners”

2 joint tenants, one ha a lien against her on her interest, then she died, whats the interest in property now

Answer 1

Right of survivorship

Requires the “four unities” of unities, TTIP: time, title, interest and possession

1, time: all interest must vest at the same time
2, title: the grant to all JTs must be by the same instrument of title (deed)
3, interest: all JTs must take the same type and same size interest
4, possession: all must have identical rights of possession.

TEXAS Only: A common law joint tenancy does not exist in Texas. However, a right of survivorship can be created by agreement between the parties.
no need for 4 unities

Language needed to create a joint tenancy: Must clearly make the intention known, because if intent of the grantor is unclear, court construes the interest to be a tenancy in common

must be language clearly indicating the desire for survivorship such as “joint tenants, with right of survivorship,” or “in joint tenancy with right of survivorship.”

survivor owns it without the lien; because right of survivorship leads to the result that after she dies the survivor gets her interest free of her concurrent interest

Question 2

c. Destruction of a Joint Tenancy

Answer 2

partition: a voluntary destruction.
severance: an involuntary destruction. This occurs whenever any one of the four unities is disturbed. 4 ways

1, conveyance by one of the JTs (A testamentary disposition by one joint tenant will not sever a joint tenancy.) new comer holds TIC, old owner still hold JT
2, a mortgage in a title theory state
“Lien theory” (majority) state = no severance. TX follows lien
3, a contract of sale
doctrine of equitable conversion: a severance occurs when a contract of sale is signed.
an executory contract to sell entered into by all JTs does not sever the tenancy
4, creditor’s sale of the interest in JT
no severance until the sale actually occurs

Question 3

2. Tenancies-in-Common (TIC)

a. Key difference

Answer 3

no right of survivorship
each co-tenant owns an undivided 1/2 interest in the land

Only one unity is required: equal rights of possession,

Question 4

TIC

b. Creating the Tenancy in Common

Answer 4

This is the default tenancy. If a JT isn’t properly created, it’s a TIC. In a common law jurisdiction if 4 unities are not present, or if the right of survivorship is unclear then a Tenancy in Common is created.

Question 5

3. Right and Duties Between or Among Cotenants

Answer 5

possession
accountability
sharing necessary expenses
right to partition

Question 6

3. Right and Duties Between or Among Cotenants

possession

Answer 6

Each co-tenant has the right to possess all the property consistent with the other co-tenants’ rights to also possess it all.

Question 7

3. Right and Duties Between or Among Cotenants
   accountability

ouster

Answer 7

Requirement that one co-tenant may have to account to another for a share of profits the cotenant received from renting to third parties or from uses of the land that reduced its value such as removing minerals, timber, etc.

However, a co-tenant in possession has the right to retain profits from her use of the property. That co- tenant generally does not have to reimburse other co-tenants the
share of profit from her own use of the land

however, if there is an ouster of the other co-tenants by a co-tenant in possession then there will be a requirement that she reimburse them for fair rental value

Question 8

3. Right and Duties Between or Among Cotenants
   sharing necessary expenses

improvements
repairs 
mortgage payments 
taxes 
property insurance

Answer 8

Contribution is the right of one co-tenant to force others to pay their share of some expenditure co-tenant made.

no; unless all agreed to
yes; if necessary 
yes; both are obligated under 
yes
yes

money spent by the co-tenant may later be considered at partition or sale of property.

Question 9

3. Right and Duties Between or Among Cotenants

right to partition

Answer 9

This right is held by every co-tenant regardless of TIC or JT. Any TIC or JT can demand this regardless of the size of his share

when cotenant cannot come to any agreement, the remedy of partition terminates the co-tenancy and divides the common property.
example: a co-tenant cannot convey or encumber any portion of, or interest in the common property owned by the co-tenants without the express authority or subsequent ratification of the other co-tenant, such action would permit the co-teannt to create a partition without the involvement of the other co-tenant

(1) the property will be capable of physical division and lines will be drawn and the parties are no longer co-tenants, they are neighbor.
OR
(2) the property will not be capable of physical division and it will be sold and the proceeds divided among the fractional owners

Partition can be achieved voluntarily or by court order