II. Concurrent Estates in Land Flashcards
Joint Tenancy: Four Unities
The Four Unities must be present at the outset in order to create a joint tenancy
- Unity of TIME: all joint tenancy intersts must have vested at the SAME TIME
- Unity of TITLE: the grant to all joint tenans must be by the same instrument
- Unity of INTEREST: All joint tenants must take the same kind and same amount of interest
- Unity of POSSESSION: All joint tenants must have identical rights of possession
Joint Tenancy: Intent
to create a joint tenancy, language of conveyance must clearly reflect the Grantor’s intent to create a joint tenancy
- anytime it is unclear, presumption will be there is a tenancy in common
Joint Tenancy Magic Words
- as joint tenants, with right of survivorship OR in joint tenancy with right of survivorship
- Right of survivorsship must be stated EXPLICILITY or it will be construed as a tenancy in common
Joint Tenancy: Right of survivorship
Joint tenancy carries a right of survivorship meaning that the joint tenants take automatically on the death of a joint tenant
Voluntary termination of joint tenancy: RIght of Partition
- if any joint tenant wants to relieved of burdens of common ownership, he can ask that the property is partitioned
- owns his portion of the property outright
- only occurs by voluntary agreement of the party
- if cannot agree, than they will bring action to seek a partiion
Involuntary Severence of Joint Tenancy
SEverence occurs whenever any one of the four unities is disturbed although it cannot be severed by will
- Sale
- Mortgage
- Contract of Sale
- Creditors Sale of the Interst
Sale of Joint Tenancy
Conveyance of the interest in joint tenancy by deed. Upon conveyance, severence occurs
(e.g. A,B,C,&D, are joint tenants. C sells his property to E. ABD remain joint tenants. E is separately partitioned
Mortgage
- Lien Theory: (MAJ/GA) there is no severance of the joint tenancy. WHen mortgage is executed, a lien ataches to the title, but title is not transferred
- Title Theory: (MIN) there is a severeance when the mortgage is granted. When excuted, ittle passes from mortgagor to mortgage even thoguh title goes back to the mortgagor at the end.
Contract of Sale
Severence occurs on the date the valid K of sale was signed–because of the doctrine equitable conversion
Creditor’s Sale of the interest in Joint Tenancy
- Under the majority view, no severance until the judicial sale ACTUALLY TAKES PLACE
- e.g. if he dies before the sale, no severence as title passes to the remaing joint tenants leaving creditor with nothing
Tenancy in Common
- No unities required except Unity of possession
- all co-tenants are entitled to possession of the entire property
- Modern default rule is to consture as tenancy in common unless joint tenancy created explicitly
- Freely alienable
- Any tenant can force a partition
- no right of survivorship
Tenancy by the Entirety
- At Common Law: required the four unities PLUS MARRIAGE
- Right of survivorship
- no right to partition
- Not severable by the unliateral act of one person
- Must have the following to terminate:
- death
- mutal agreement
- divorce
- execution by a JOINT creditor
- Georgia has abolished join tenancy
Issues of Co-Ownership: Possession
(JT, TIC, TBE)
Each co-tenant has the right to possess the whole of the property–consistent with the same right of every other co-tenant
Issues of Co-Ownership: Accountability
One co-tenant does not have to account to another co-tenant for his share of the profits, subject to four execptions:
- Ouster: accounting is required if one co-tenant is either keeping a co-tenant off the property OR claiming a right of exclusive posession
- Agreement to share
- Lease of property by a co-tenant to a 3P
- Depletion of Natural resources
Issues of Co-Ownership: Contribution
- Contribution concerns the right of one co-tenant to force the other co-tenants to pay their fair share of some expenditure made on the property. The right to contribution depends on what type of expenditure was made on the property.
- Improvements? Although there is no current right of contribution, any monies expended for improvements (or any non-necessary repairs) may be recouped later, generally at time of sale of the property or on a partitioning of the property.
- Repairs? Contribution is required, but only for necessary repairs.
- Pay Mortgage? Contribution is required for payments on any mortgage on the
- property that has been signed by all the co-tenants.
- Taxes? Contribution is required towards all governmentally imposed obligations
such as property taxes, or other assessments such as for improvements to curbs, streets, sewers, etc.
