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
What happens to the last surviving joint tenant?
Because each tenant has a right of survivorship, the last remaining joint tenant takes the others’ shares as if the property had originally gone to him from the grantor.
How can you convert a joint tenancy into a tenancy in common?
The unilateral act of one tenant can do this.
What is meant by the “last man’s club” involved in a joint tenancy?
When each cotenant dies, his interest is extinguished. If you start with four cotenants and one dies, each remaining cotenant gets a 1/3 interest. If another dies, then each remaining cotenant has a 1/2 interest. If another one dies, then the last remaining cotenant has a fee simple absolute
What is a merger under joint tenancy?
If you only have two joint tenants, a conveyance of the undivided interest of one to the other extinguishes the joint tenancy by merger and gives the grantee sole ownership of the estate.
Modernly is it enough to say “to A and B jointly” if you want to create a joint tenancy?
No, that is not enough. There can be some leeway about the language used, but it must clearly indicate a joint tenancy
If property is held by two joint tenants, and one leases the property to a third party without telling the other joint tenant, then dies while there’s still time running on the lease, what happens?
There’s a split in the courts:
– some say that the lease severed the joint tenancy and created a tenancy in common, so the lease would terminate
- other courts say it doesn’t sever it
Joint tenancy takes precedence over what?
A will. There’s an automatic transfer of the right of survivorship that kicks in before a will does. So if A and B own property as joint tenants, and B dies leaving a will that gives his interest to C, on his death his right of survivorship automatically vests title in A. When the terms of the will are carried out, there is no interest to C because the right of survivorship takes precedence over the will automatically
If there’s no tenancy by the entirety, a transfer to a husband and wife as joint tenants with a right of survivorship creates what?
A joint tenancy if it would’ve done so had they not been married
Is it possible for a grantor to create a joint tenancy by conveying land to himself and another?
At common law no. The workaround is to use a strawman or third person who then conveys the estate back to the whole group including the grantor. Some states have statutes that allow joint tenancy through direct conveyances and this eliminates the requirement of the four unities
If one joint tenant kills the other, what happens?
Technically the killer would get sole ownership, but many states have statutes where the killing destroys that right so the estate either reverts to a tenancy in common or the killer is deprived of all interest in the property. Modernly the trend is for the killer to take only a half interest or no interest at all
How do you convert a joint tenancy into a tenancy in common?
Through severance. Each joint tenant’s interest is really alienable, but a transfer of one person’s interest severs it from joint tenancy and defeats survivorship rights of the other joint tenants. The transfer creates a tenancy in common between the transferee and the other former joint tenants.
If there were three or more joint tenants, and then one tenant makes a transfer to a stranger, what does that do?
It creates a tenancy in common regarding the remaining joint tenants and the person who got this new interest. But the other joint tenants remain joint tenants among themselves
