Pg 16 Flashcards
How does a conveyance create a tenancy in common?
- If the instrument gives a named cotenant a specified undivided interest, whether equal or not
- if the instrument gave some cotenants estates in fee simple and others estates for life
- or if the grantor expressed the intent to create a tenancy in common
If there’s a failure of any of the four unities when it comes to concurrent estates, what is the presumed form?
Tenancy in common
Is it necessary for a tenancy in common that the estates be the same quantity?
No, some can be fee simple and others can be for life
What is the only unity that is required for tenancy in common?
Unity of possession. All cotenants must have equal rights of possession and use, but they can have different percentages of ownership
Does a tenancy in common create a right of survivorship?
No. So if one dies, his share passes to his own heirs or devisees
What are each of the cotenant’s rights to the use of property under a tenancy in common?
Each cotenant has a right to use all of the property subject to the right of others to do the same. Each can make reasonable use of it as long as the value is not diminished
If different cotenants get their interests to land at different times by different instruments, what has that created?
A tenancy in common
If two or more people that are unmarried take a joint interest in property, what is the presumed form that that is taken in?
Tenancy in common, unless the grantor expresses intent to create a different type of tenancy
If spouses take property in a joint form, is it possible that the form is tenancy in common?
That can only happen if the grantor expressly and clearly says that is the intent, otherwise it is considered to be a tenancy by the entirety
Is an interest in a tenancy in common considered to be alienable?
Yes, it is freely alienable without the consent of the cotenant. It can be transferred by deed, lease, mortgage, devised by will, or it can pass by intestate succession to heirs
If the wording is “for the joint use and benefit“ what type of tenancy has been created?
Tenancy in common, not a joint tenancy
What is the presumption as far as the quality and quantity of the interest for a tenancy in common?
It is presumed to be equal unless the deed or the will expressly says the shares are unequal. This can be rebutted by proof that the parties contributed unequal amounts to the purchase, that there was no family relationship, that there was a donative intent from people who paid more, etc.
If a tenancy in common exists, what is the interest in subsurface minerals?
It is an undivided interest
If an owner of a tenancy in common dies, what happens to his interest?
His portion passes to his heirs
What is the rule about paying rent to other co-tenants in relation ouster?
There’s no liability to pay rent to the other co-tenants unless an ouster has occurred
If a cotenant in sole possession of a tenancy in common makes necessary repairs, is he entitled to contribution from the other cotenants?
No, unless there was an agreement otherwise. The value of possession is thought to be a proper compensation
What is a joint tenancy?
When two or more co-owners have an undivided fractional share in the ownership of the land, and each has a right to use all of it subject to the other’s right to do the same.
- The interest of a co-owner is extinguished on the death of that co-owner.
- There’s a right to survivorship that gives the last surviving joint tenant sole ownership
In a joint tenancy is each joint tenant seized of the entire estate for tenure and survivorship?
Yes
For joint tenancy how does alienation work?
Each joint tenant only has a fractional interest in the entire state.
How do you create a joint tenancy?
You must specifically say “joint tenancy“ and include language like “with right of survivorship“ to make it clear.
– Common law: you could just use the word “jointly“
– modernly: without the specific words of joint tenancy it is presumed to be a tenancy in common
On an essay when you’re discussing joint tenancy, what is a good idea to point out?
Both the common law and modern views of how to create a joint tenancy
- common law: can just use the word “jointly“
- Modernly: you must use the words “joint tenancy” and usually include some language of “right of survivorship“ to make it clear, otherwise it is presumed to be a tenancy in common
What is the key to a joint tenancy?
Right of survivorship
If you want to add someone later as a joint tenant, what do you have to do?
– Common law: must have the four unities. So if you want to later add someone as a joint tenant, you have to use a straw man to satisfy the unities of time and title. Each joint tenant must own an equal share of the property
– modernly: you don’t need time and title unity, but interest and possession are still required
How can a joint tenancy be created?
By either inter vivos conveyance or will