Mid-Term Flashcards
How does Joint Tenancy w/ Right of Survivorship work?
Held by A + B , A dies - all goes to B
Joint Tenancy w/ ROS what is needed
4 Unites
JT 4 Unites - what are they?
- Time - same time
- Title - same document
- Interest - same size
- Possession - equal possession rights
JT w/ ROS some states require what ?
That intent to have this type of title be clearly expressed
JT w/ ROS by A + B - A coveys to H what happens?
B is in TIC w/ H - conveyance severs JT
Why is it a now a TIC? b/c all 4 unities not met
JT w/ ROS - do you need to inform others of Sale ? Lease?
No and No
Tenancy in Common is what if title unclear ?
TIC is the PRESUMPTION
TIC - can it be sold or leased w/o telling others?
Yes - then new owner has TIC w/ others
A + B + C = TIC / A sells to X / now X + B + C = TIC
Can JT w ROS be Devised ?
Nope - when A dies , all goes to B
Can TIC be devised ?
Yes - A dies now B + X have TIC
If TIC is leased by one tenant, is the other bound by the lease?
No - and - other still has right to posses the whole .
A can lease but X will have to share possession with B
A + B are TIC , A gets in debt, can creditor encumber the property ?
Yes - TIC can be encumbered by a creditor
If all owners in a TIC join the lease , what is paid ?
They receive their fractional share payments
A + B + C TIC / Rent to X / A,B,C, ll receive 33% of rent each
If TIC sold in entirety - who gets what ?
They all receive their fractional share value
Do TIC have same size shares ?
They do NOT have to BUT presumed if not stated or ambiguous
Tenancy by the Entirety w/ ROS - who can own this?
Married couples only
T by Ent - how is the married couple seen ?
A one unit / as a whole single entity
When is the T by Ent severed ?
Death or Divorce - unless both agree
For married couples what is presumed ownership in some jurisdictions?
T by the Ent w/ ROS
T by Ent - can it be destroyed (sale , lease , etc) by one ?
No - seen and have to act as a Unit
T by Ent - can it be subject to debt ?
Yes - a joint debt
Does each spouse have a separate interest that can be separately conveyed or encumbered or seized by the creditors of one spouse alone to satisfy their claims against one debtor?
NO, cannot be encumbered by creditors of one unless both agree
Can a Tenant in Poss use property as she wishes (JT or TIC) ?
Yes - as long as she doesn’t Waste it
Burden - Does the co-tenant have a responsibility to share in the expenses?
Yes - Basic expenses
Burden - Does the co-tenant have a responsibility to share in the inprovements?
No - only basic expenses
What is an Ouster ?
An explicit act by which one co-owner excludes other co-owners from the property (Applies to both TIC + JT)
Ouster Elements (2)
- The tenant out of possession requests to be let into possession - request does NOT have to be in words (or expressly said)
- The tenant in possession then excludes the other by an affirmative act (changing locks, etc)
a. The tenant in possession must pay rent to the ousted owner b. The amount owed is the fractional share of the rental value owned by the co-owners of the property
What is Constructive Ouster/ how or why does it occur?
i. This can occur when the character of the property makes joint occupancy impossible or impracticable
ii. Impracticability may also result when the relationship between the co-tenants is strained (divorce)
iii. Unless the hostility flows from the co-tenant out of possession ordinarily
What is a Partition ?
A division of land held by co-tenants
What types of Partition are there?
- Division can be voluntary or involuntary
a. Partition in Kind or Partition by Sale - Co-tenants will receive their respective fractional shares
One party can ask for Partition (from other owners or court)
All factors are considered in partition
