Pg 17

Question 1

If O, P, and R are joint tenants, and O conveys to S, what has happened?

Answer 1

S now has a tenancy in common 1/3 interest. P and R continue to have a joint tenancy with each other, and they have an undivided 2/3 interest together as joint tenants. If S dies, his portion goes to his heirs. If P days, his portion goes to R and vice versa

Question 2

Can a will ever sever a joint tenancy?

Answer 2

No, because the right of survivorship kicks in before the will

Question 3

What are the different ways that severance of a joint tenancy can happen?

Answer 3

– from transferring less than the entire interest of a joint tenant
- by an express agreement between joint tenants to hold it as tenants in common
– when an outright conveyance of one party’s interest is given or sold to a third-party
– mortgaging an interest

Question 4

If a couple that holds property in joint tenancy gets a divorce, does that sever their joint tenancy?

Answer 4

No

Question 5

Is it possible to unilaterally sever a joint tenancy without giving notice to the others?

Answer 5

Yes, the joint tenancy is destroyed when an outright conveyance of one party’s interest is given or sold to a third-party

Question 6

What are the two different theories for mortgaging an interest in a joint tenancy?

Answer 6

A lien theory and the title theory

Question 7

What is the difference between a lien theory and a title theory for mortgaging an interest under a joint tenancy?

Answer 7

– lien theory: majority approach, so if it is not specified in the question, assume this. Treats the mortgage as a lien on the property, which does not sever the joint tenancy. B’s interest is now subject to the mortgage in favor of the bank, so if you default and the bank forecloses or sells, that severs the joint tenancy. Issuing a mortgage does not sever it, only foreclosure or sale does.
– Title theory: treats a mortgage as title to property, so is treated the same as selling it, which severs the joint tenancy and creates a tenancy in common. The other party has his half interest free and clear of the mortgage and B’s half interest is subject to the mortgage. The act of issuing the mortgage severs the joint tenancy

Question 8

What is a tenancy by the entirety?

Answer 8

This is not a majority rule, in fact it has been abolished in all but 20 jurisdictions.
– If abolished: a conveyance to a H and W creates either a TIC, JT, or CP.
– If tenancy by the entirety is not abolished: a conveyance to a married couple is presumed to create this type. Must be married. When the first spouse dies, the surviving spouse owns 100% of the property. The grantor must mention the marital status in the conveyance, but sometimes the language of double “and“ helps out.

Question 9

What is an example of using a double “and“ that would help create a tenancy by the entirety?

Answer 9

“Bart and Rose, and third person.“

Question 10

What does each couple get under a tenancy by the entirety?

Answer 10

They get only a single share under this view, because they are seen as one person under the law.

Question 11

Do community property states use tenancy by the entirety?

Answer 11

No

Question 12

Under common law, any conveyance to a husband and wife created what?

Answer 12

A tenancy by the entirety with an indestructible right of survivorship, even if the instrument expressly provided that the parties were to hold it as joint tenants or tenants in common

Question 13

What is the rule for creditors regarding tenancy by the entirety?

Answer 13

– Creditors of one spouse cannot reach any property that the debtor spouse holds as tenancy by the entirety because it protects the non-debtor spouse. The only creditors that can get access are joint creditors of both spouses
– At common law: The husband had the right to use property for his purposes but today spouses are equal.

Question 14

What are the unities that are required for a tenancy by the entirety?

Answer 14

• CL: all four unities plus a 5th unity of person that can only happen by marriage.
• modernly: you just need the unities of interest and possession

Question 15

What is gotten from a tenancy by the entirety?

Answer 15

Both spouses get a right of survivorship and an equal interest in the property

Question 16

If there is ambiguous language relating to a tenancy by the entirety, how is it treated?

Answer 16

– at common law it is treated as a joint tenancy

– modernly it is treated as a tenancy in common

Question 17

If the language says, “John and Mary, his wife.“ Does that show intent for a tenancy by the entirety?

Answer 17

Yes

Question 18

How do you get a partition of a tenancy by the entirety?

Answer 18

You must get the consent of both owners, or a divorce court’s action to settle the property

Question 19

If a marriage turns out to be void, what does that do to a tenancy by the entirety?

Answer 19

If the transferees are not husband-and-wife, then they take as either tenants in common or joint tenants. Courts favour tenants in common here

Question 20

Is a tenancy by the entirety destructible by the unilateral act of either spouse?

Answer 20

Generally no.
– In some states each spouse has an undivided half interest that can be conveyed or encumbered at will and is subject to sale to satisfy individual debts
– most states say that neither spouse has an interest that can be separately conveyed or encumbered, or seized by creditors of one spouse alone to satisfy their claims against that spouse, so one spouse alone cannot convey, encumber, or subject to satisfaction of creditor’s claims either spouse’s possessory estate

Question 21

Is it possible for a couple to join together to convey or mortgage a tenancy by entirety?

Answer 21

Yes, and that can subject their land to the payment of joint debts so it can be sold on execution

Question 22

What happens if one spouse dies when they owned land as a tenancy by the entirety?

Answer 22

The surviving spouse becomes the sole owner unless that right was conveyed or sold on execution

Question 23

What are the ways you can terminate the tenancy by the entirety?

Answer 23

• release: If you make a conveyance of the entire interest by one spouse to the other
• divorce/annulment terminates and converts it into a tenancy in common

Question 24

What are some of the clues that a tenancy by the entirety is at issue?

Answer 24

If the facts mention the marital status of the husband and wife, or they use a double “and“ like they say “T and D, and their son.“

Question 25

What is community property?

Answer 25

The grantor grants land to a husband and wife as community property. 10 states have this and at least half of the property must go to the surviving spouse on the other’s death.

Question 26

What is a tenancy in partnership?

Answer 26

Property acquired by a partnership is property of the partnership, and not of the partners individually.

Question 27

If property is purchased with partnership assets, it is presumed to be what?

Answer 27

Partnership property. If property is purchased with private assets it is presumed to be private property.

Question 28

Is it possible for partnership property to be transferred?

Answer 28

Yes by any partner that has the authority to do that

Question 29

What are the two different ways that you can partition concurrent estates?

Answer 29

Voluntarily or by a judicial proceeding

Question 30

How do you partition a concurrent estate voluntarily?

Answer 30

If all cotenants agree to divide the property, that is permissible, although the grantor can forbid it when he makes the grant.

Question 31

What are the two different ways that you can petition a concurrent estate voluntarily?

Answer 31

By a division in kind, or a division by sale

Question 32

What is a division in kind as a voluntary way to partition a concurrent a state?

Answer 32

You physically divide the property into pieces and each co-tenant takes possession of a piece

Question 33

What is involved in a division by sale partitioning of a concurrent estate?

Answer 33

Property is sold and each cotenant takes a share of the proceeds

Question 34

What are the two different ways that you can partition a concurrent estate through a judicial proceeding?

Answer 34

Through a division in kind, or by a division by sale

Question 35

How do you partition a concurrent estate through a judicial proceeding via a division in kind?

Answer 35

This preserves the physical estate and gives each cotenant a possessory interest. It is the preferred method. If the court is able to divide into nearly but not quite equal pieces, they might demand that the benefitted cotenant pay a sum to the other to make up for the difference. This is called owelty.

Question 36

What is involved in the partitioning of concurrent estates through a judicial proceeding via a division by sale?

Answer 36

Usually a property’s value rests on one improvement such as a house, so if division in kind is not possible, the property will be ordered sold and the proceeds will be split according to the interest of each cotenant. The court decides whether it will be a public or private sale. If the price is not adequate, the court will order a second sale.

Question 37

What are the rights of cotenants?

Answer 37

They are all entitled to possession of all parts of the land at all times, so sole possession and use by one is not tortious or adverse or against the others as long as they are not excluded/ousted from possession by that cotenant in possession

Question 38

What is a cotenant’s right to equal possession?

Answer 38

Under both tenancy in common and joint tenancy it is required that each cotenant has a right to possess the entire parcel