Property - Concurrent Estates

Question 1

Three Forms of Concurrent Ownership

Answer 1

1. The joint tenancy: two or more own with the right of survivor ship.
2. The tenancy by the entirety: A marital interest with the right of survivor ship.
3. The tenancy in common: two or more own with NO right to survivorship

Question 2

Joint Tenancy - Distinguishing Characteristics

Answer 2

1. Right of Survivorship: when one dies, his share goes automatically to surviving joint tenant.
2. A joint tenant interest is alienable, but it is not devisable or descendible b/c of the right of survivorship.

Question 3

Creation of Joint Tenancy

Answer 3

1. The Four Unities - “T-TIP”

Joint tenants must take their interest:

T: Time – At the same time
T: Tile - Taken in the same interests
I: Identical - With identical interest
P: Possession - Same right of possession - Right to take the whole.

2. Grantor must clearly express the right of survivorship [Why? joint tenancies are disfavored]
3. Use a of “straw” (a middleman/conduit) [Example convey to a paralegal who conveys to joint tenants]

Question 4

Severance of Joint Tenancy

Answer 4

SPAM: Sale Partition And Mortgage

1. Severance and Sale
   (i) Joint tenants can sell or transfer her interest during her lifetime. Disrupt joint tenancy. Buyer is a tenant in common.
   (ii) In equity, a joint tenant’s mere act of entering into a contract for sale of share will severe the joint tenancy as to the contracting party’s interest. [Equitable conversion]
2. Severance and Partition
   (i) Voluntary Agreement: peaceful way to terminate the agreement.
   (ii) Partition in kind: Judicial action/order for physical division if in best interest of all.
   (iii) Forced sale: A court action if its in the best interest of all to sell and divide up proportionally (best when physical separation is impossible/difficult)
3. Severance and Mortgage

Mortgage on interest will severe joint tenancy in jurisdictions that follow title theory. [applies in MA - minority view]

No severance in lien theory states [majority view]

Question 5

Tenancy by the Entirety Creation and Characteristics [MBE View]

Answer 5

Creation: Between married partners with right of survivorship. Created presumptively when conveyed to married partners unless otherwise stated.

Creditors: Creditors of only one spouse, can’t reach this tenancy.

Unilateral conveyance: No unilateral severance or conveyance to 3). Conveying together maintains tenant in entirety.

Question 6

MA Distinctions on Tenancy by the Entirety

Answer 6

Conveyance to married partners creates a tenancy in common unless explicitly stated otherwise. [No presumption in favor of tenancy by the entirety]

Creditors of only one spouse may encumber that spouse’s share, but can’t reach other share or defeat the right of survivorship.

Question 7

Tenancy in Commons - Three key features

Answer 7

1. Each co-tenants owns: an individual party and has the right to possess the whole.
2. Each interest is devisable, descendible and alienable. There are no surviorship rights between tenants in common.
3. Presumption in favor of tenancy in common.

Question 8

Possession in Co-Tenants (Tenancy in Common)

Answer 8

Each co-tenant is entitled to possess the whole.

If one co-tenant wrongfully excludes another co-tenant as to whole or part, he has committed wrongful outster.

Question 9

Rent from Co-Tenant in Exclusive Possession and From 3P (Tenancy in Common)

Answer 9

Absent outster, a co-tenant in exclusive possession is not liable to the others for rent.

A co-tenant who leases all or part of the premises to a third party is accountable to his co-tenants and must pay them their fair share.

Question 10

Carrying Costs/Repairs/Improvements for Co-Tenants (Tenancy in Common)

Answer 10

Carrying Costs: Each co-tenant is responsible for his or her fair share of carrying costs based on his/her undivided share. (Taxes/Mortgage interest).

Repairs: A repairing co-tenant enjoy a right to contribution for reasonable and necessary repairs provided that she has told the others of the need.

Improvements: No right to contribution for “improvements” ,but at partition co-tenant is entitled to credit or deduction for any increase or drop in value due to her efforts.

Question 11

Co-Tenancy and Waste/Partition

Answer 11

Waste; A co-tenancy must not commit waste.

Partition: A joint tenant or tenant in common has a right to bring an action for partition.