Overview and Concurrent Estates

Question 1

Concurrent Estates

Answer 1

• you can have several people concurrently holding an estate in a parcel of land -> they all have right to enjoyment and possession

Question 2

Types of Concurrent Ownership

Answer 2

• joint tenancy
• tenancy in common
• tenancy by entirety

Question 3

Joint Tenancy - Distinguishing Features

Answer 3

• two or more own with RIGHT OF SURVIVORSHIP
• interest is alienable inter vivos (i.e. you can transfer your interest to somebody else while you’re alive)
• BUT the interest is neither devisable nor descendible because of the right of survivorship
  -> when you die, your interest passes to the surviving joint tenant(s), so there’s no property interest remaining to become part of your estate
  -> means any effort to put the property in your will is void

Question 4

How to Create a Joint Tenancy

Answer 4

Common Law requires four unities (T-TIP):
- Time
- Title (same deed, will or other doc of title)
- Interests (must be identical and equal) -> REQUIRES EQUAL SHARES
- Possession - must have right to possess the whole

Modern view - added requirement of clear expression of right to survivorship (presumed tenancy in common otherwise)

Question 5

Severance of a Joint Tenancy

Answer 5

• SAP - Sale and Partition
• Severance and sale
• Severance and partition
• mortgage - DEPENDS ON WHETHER LIEN THEORY OR TITLE THEORY

Question 6

Joint Tenancy - Severance and Sale

Answer 6

• one joint tenant can unilaterally sell or transfer (convey) to someone else + thereby destroy joint tenancy -> transferee takes as tenant in common
  -> BUT if you had more than two joint tenants in the first place, the joint tenancy remains intact for the other joint tenants with respect to each other (only the newbie is a tenant in common)

Question 7

Joint Tenancy - Severance and Partition

Answer 7

3 types:
1- by voluntary agreement
2 - by judicial action called a partition in kind -> an action for the physical division of the property, if in the best interests of all parties
3 - by judicial action called a forced sale -> action when, in the best interests of all parties, the land is sold + the sale proceeds are divided up proportionately

Question 8

Joint Tenancy - Mortgages

Answer 8

• in most states, they do NOT sever the joint tenancy
  -> lien theory - the mortgage is a lien, + joint tenancy only ends if the mortgage is foreclosed on (in which case property sold)
• BUT title theory states: mortgage DOES sever joint tenancy (giving creditor lien on one’s share is the equivalent of transferring title to that creditor)

Question 9

Effect of One Joint Tenant Murdering Other

Answer 9

• under Uniform Probate Code + modern statutes, when a beneficiary unlawfully + intentionally kills a joint tenant, any joint property is transformed into tenancy in common

Question 10

Joint Tenancy - Wills and Severance

Answer 10

• a will cannot work a severance (you CAN’T end the joint tenancy by leaving your interest to someone else in your will) because your interest disappears once you die

Question 11

Tenancy by the Entirety

Answer 11

• marital estate akin to a joint tenancy
• can be created only between married partners, who take as a fictitious “one person” w/ right of survivorship

Question 12

Tenancy by Entirety - Creation

Answer 12

• arises presumptively in any conveyance to married partners unless the language of the grant clearly indicates otherwise

Question 13

Tenancy by Entirety - Protection of Interest

Answer 13

• VERY protected form of co-ownership
• creditors of only one spouse can’t touch this kind of estate to satisfy a debt
• one spouse, acting alone, CAN’T defeat right of survivorship by unilaterally conveying to a third party
• one spouse also can’t encumber the property solo -> any deed or mortgage executed by only one spouse is ineffective

Question 14

Tenancy by the Entirety - Severance

Answer 14

• only death, divorce, mutual agreement, or execution by a joint creditor of BOTH spouses can sever a tenancy by the entirety
• on divorce, the tenancy becomes a tenancy in common

Question 15

Tenancy in Common

Answer 15

• concurrent estate w/ no right of survivorship
• multiple grantees are typically presumed to take as tenants in common

Core features:
- each co-tenant owns an individual part (doesn’t need to be equal, though that’s presumed), + each has right to possess the whole
- each interest is devisable, descendible, + alienable

Question 16

Rights + Duties of Co-Tenants - Possession

Answer 16

• each has right to possess all portions of the property
  -BUT no right to EXCLUSIVE possession of any part
  -> if one wrongfully excludes another, it’s ouster (actionable wrong)

Question 17

Rights + Duties of Co-Tenants - Rents + Profits

Answer 17

• most states, a co-tenant in exclusive possession has right to retain PROFITS from their use of the property (don’t need to share w/ other co-tenants, absent ouster or some agreement to the contrary)
  -> must share net profits gained from exploitation of the land though, such as mining
• BUT co-tenant who leases who leases all or part of premises to third-party must provide co-tenants w/ their fair share of the rental income

Question 18

Rights + Duties of Co-Tenants - Adverse Possession

Answer 18

• CAN’T acquire title to the whole property through adverse possession unless you’ve ousted the other co-tenants

Question 19

Rights + Duties of Co-Tenants - Costs

Answer 19

• each responsible for fair share of carrying costs
• ## can seek contribution from others for reasonable + necessary repairs (provided you gave notice), BUT no right of contribution for improvements

Question 20

Rights + Duties of Co-Tenants - Waste

Answer 20

• co-tenant must not commit waste, + can bring action against another for any waste

Question 21

Types of Waste

Answer 21

• voluntary: willful destruction
• permissive: neglect
• ameliorative: unilateral change that increases value

Question 22

Co-Tenants - Partition

Answer 22

• joint tenant or tenant in common has right to bring action for partition (voluntary agreement, partition in kind, or forced sale)
• courts prefer partition in kind, but will permit by sale when fair + equitable division of the physical property can’t be made
• restraints on partition by co-tenants are valid, provided they’re limited to a reasonable time

Question 23

Effect of One Concurrent Owner’s Encumbering the Property

Answer 23

• joint tenant or tenant in common can encumber OWN interest (mortage, judgment lien, etc.) but CANNOT encumber interests of other co-tenants
• ex: one tenant in common mortgages her interest, mortgagee can foreclose only on the mortgaging co-tenant’s interest
  -> if mortgagor dies before foreclosure, the mortgagee’s right is extinguished (unless it’s a title theory state)

Question 24

Duty of Fair Dealing

Answer 24

• confidential relationship exists among co-tenants
• one co-tenant’s acquisition of an outstanding title or lien that may affect the estate is deemed to be on behalf of other co-tenants (not entirely sure what this specifically means, but think in general you’re not supposed to act to advantage yourself unilaterally in comparison to other co-tenants