Pg 17 Flashcards
If O, P, and R are joint tenants, and O conveys to S, what has happened?
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
Can a will ever sever a joint tenancy?
No, because the right of survivorship kicks in before the will
What are the different ways that severance of a joint tenancy can happen?
– 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
If a couple that holds property in joint tenancy gets a divorce, does that sever their joint tenancy?
No
Is it possible to unilaterally sever a joint tenancy without giving notice to the others?
Yes, the joint tenancy is destroyed when an outright conveyance of one party’s interest is given or sold to a third-party
What are the two different theories for mortgaging an interest in a joint tenancy?
A lien theory and the title theory
What is the difference between a lien theory and a title theory for mortgaging an interest under a joint tenancy?
– 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
What is a tenancy by the entirety?
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.
What is an example of using a double “and“ that would help create a tenancy by the entirety?
“Bart and Rose, and third person.“
What does each couple get under a tenancy by the entirety?
They get only a single share under this view, because they are seen as one person under the law.
Do community property states use tenancy by the entirety?
No
Under common law, any conveyance to a husband and wife created what?
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
What is the rule for creditors regarding tenancy by the entirety?
– 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.
What are the unities that are required for a tenancy by the entirety?
- 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
What is gotten from a tenancy by the entirety?
Both spouses get a right of survivorship and an equal interest in the property
If there is ambiguous language relating to a tenancy by the entirety, how is it treated?
– at common law it is treated as a joint tenancy
– modernly it is treated as a tenancy in common
If the language says, “John and Mary, his wife.“ Does that show intent for a tenancy by the entirety?
Yes
How do you get a partition of a tenancy by the entirety?
You must get the consent of both owners, or a divorce court’s action to settle the property
If a marriage turns out to be void, what does that do to a tenancy by the entirety?
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
Is a tenancy by the entirety destructible by the unilateral act of either spouse?
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
Is it possible for a couple to join together to convey or mortgage a tenancy by entirety?
Yes, and that can subject their land to the payment of joint debts so it can be sold on execution
What happens if one spouse dies when they owned land as a tenancy by the entirety?
The surviving spouse becomes the sole owner unless that right was conveyed or sold on execution
What are the ways you can terminate the tenancy by the entirety?
- 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
What are some of the clues that a tenancy by the entirety is at issue?
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.“
What is community property?
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.
What is a tenancy in partnership?
Property acquired by a partnership is property of the partnership, and not of the partners individually.
If property is purchased with partnership assets, it is presumed to be what?
Partnership property. If property is purchased with private assets it is presumed to be private property.
Is it possible for partnership property to be transferred?
Yes by any partner that has the authority to do that
What are the two different ways that you can partition concurrent estates?
Voluntarily or by a judicial proceeding
How do you partition a concurrent estate voluntarily?
If all cotenants agree to divide the property, that is permissible, although the grantor can forbid it when he makes the grant.
What are the two different ways that you can petition a concurrent estate voluntarily?
By a division in kind, or a division by sale
What is a division in kind as a voluntary way to partition a concurrent a state?
You physically divide the property into pieces and each co-tenant takes possession of a piece
What is involved in a division by sale partitioning of a concurrent estate?
Property is sold and each cotenant takes a share of the proceeds
What are the two different ways that you can partition a concurrent estate through a judicial proceeding?
Through a division in kind, or by a division by sale
How do you partition a concurrent estate through a judicial proceeding via a division in kind?
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.
What is involved in the partitioning of concurrent estates through a judicial proceeding via a division by sale?
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.
What are the rights of cotenants?
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
What is a cotenant’s right to equal possession?
Under both tenancy in common and joint tenancy it is required that each cotenant has a right to possess the entire parcel
