Ownership - Concurrent Interests

Question 1

What is Joint Tenancy?

Answer 1

2 or more co-tenants owns:

1. Undivided Interest in the whole property AND
2. Has a right of survivorship

Interest is alienable (not devisable/descendible)

Question 2

What is Tenancy in Common?

Answer 2

Each co-tenant:

1. Owns undivided interest in the whole property and
2. Has unrestricted rights to possess the whole

• No right of Survivorship
• Interest freely devisable/tansferable

Question 3

Any conveyance to 2 or more people is presumed to create what type of tenancy?

Answer 3

Commone Law - Joint Tenancy

Majority - Tenancy in Common

Question 4

What is the effect of Right of Survivorship?

Answer 4

Upon the death of JT, the property auto. transfers to the remaining JT(s)

Question 5

How is a JT created?

Answer 5

Requires Express Language Creating JT

JT must be created with each JT having: (4 Unities - PITT)

1. P - Unity of Possession - Equal right to possess or use the property
2. I - Unity of Interest - Each interest equal to the others
3. T - Unity of Time - At the same time AND
4. T - Unity of Title - in the same instrument

Question 6

How is TIC created?

Answer 6

Each tenant n common must have equal right to possess the entire property

• No right of survivorship
• Presumed in majority of states - when conveyance to 2 or more people

Question 7

What is a Tenancy by the entirety ?

Answer 7

• Joint tenancy between married persons
• with a right of survivorship
• Neither party can alienate or encumber the prop. w/out the consent of the other
• Only recognized in certain states - not in community property states states

Question 8

How is TBE created?

Answer 8

4 Unities + Unity of person

Question 9

What happens to TBE in the event of a divorce?

Answer 9

Divorce severs the TBE & it becomes a TIC

Question 10

How is JT severed?

Answer 10

When JT severed it’s converted into TIC, can sever by:

1. Conveyance During Life
2. Mortgage - Severs under Title Theory but not Lien teory
3. Judicial Lien followed by levy and sale
4. Leases - In jurisdictions that hold the lease destroys the unity of interest & thus severs the JT
5. Intentional Killing of other JT - Some juris. have statutes that sever the JT

Question 11

Effect of Severence of JT ?

Answer 11

• Converts JT into TIC
• If more than 2 JTs
  
  • JT remains intact b/w remaining joint tenants
  • Interest sold is held as a TIC b/w all parties

Question 12

Joint Tenancy - Lien Theory

Answer 12

Majority

• Mortgage is only a lien on the property
• Doesn’t sever the JT
• Severence only occurs upon foreclosure sale following a default

Question 13

Joint Tenancy - Title Theory

Answer 13

Minority

• Granting mortgage = a transfer of title
• JT severed & becomes TIC
• BUT if more then 1 remaiining JT, they cont. to hold their prop. int. with each other as joint tenants

Question 14

Rights and duties of co-tenants - Possession

Answer 14

Each co-tenant:

• has the right to possess the entire prop.
• Not required to pay rent to the other co-tenants for the value of her own use of the property
  
  • even if when other co-tenants don’t make use of the prop.

Question 15

Rights & Duties of Co-Tenenats - Third Paty Rents

Answer 15

Co-tenant must account to other co-tenants for rent received from 3d parties

• Divided based on the ownership interest of each tenant

Question 16

Rights & Duties of Co-tenants - Operating Expenses

Answer 16

Co-Tenant can collect contribution from other co-tenants for paying more than his portion of necessary or beneficially spent operating expenses

• Taxes
• Mortgage Interest

BUT co-tenant in sole possession can collect only for the amount that exceeds the rental value of the prop.

Question 17

Rights & Duties of Co-tenants - Repairs & Improvements

Answer 17

• No right to be reimbursed by other co-tenants for repairs made to prop. even nec repairs
• Majority View - Contrib. for nec. reparis can be compelled in actions for accounting or partition

Question 18

What is Ouster & what is the effect?

Answer 18

Ouster - When co-ten. refuses to allow another co-tenant access to the prop.

Effect - Ousted Co-tenant can bring court action for ouster

• Seek injunction to gain access toprop AND
• recover the value of the use of the prop. for the time he was denied access

Question 19

Co-Tenants & Natural Resources

Answer 19

Co-tenant is entitled to the land’s natural resources in proportion to her share

Question 20

Who may partition?

Answer 20

• TIC or JT has the right to unilaterally partition the prop.
• Can be done:
  
  • voluntarily - If the co-tenants agree in writing on the division of the land OR
  • Involuntary - By court action

Question 21

What is the effect of partition in kind?

Answer 21

Partition in kind - Court divides the jointly owned prop. into distinct physical protions

Question 22

What if partition in kind is not practicable or fair?

Answer 22

Court may order a partition by sale

• Proceeds distributed among co-tenants based on their ownership interests

Question 23

Can co-tenants have an agreement not to partition?

Answer 23

Yes & it is enforceable

• Agreement must be clear and
• time limitation must be reasonable

Question 24

What are the only ways a TBE can be severed?

Answer 24

1. Divorce OR
2. If the couple both agree to sell their interest

Question 25

If a member of a JT has a lien on their share of the prop., what happens to their prop. int. at death ?

Answer 25

Lien disappears when JT recovers the int through right of survivorship

Question 26

When there is a life tenant and a remainderman, who is responsible for paying the mortgage principal and interest?

Answer 26

• Remainderman = Principal
• Life Tenant = Mortgage Interest