Property - CONCURRENT ESTATES Flashcards
CONCURRENT ESTATES
Include the
(1) JOINT TENANCY - Two or more own with the RIGHT OF SURVIVORSHIP
(2) TENANCY BY THE ENTIRETY -A protected MARITAL (need to be married for this to apply) interest between married partners with the RIGHT OF SURVIVORSHIP
(3) TENANCY IN COMMON - Two or more own with NO right of survivorship
Joint Tenancy
Two or more own with the RIGHT OF SURVIVORSHIP
Distinguishing characteristics:
(1) RIGHT OF SURVIVORSHIP - when one joint tenant dies his share passes automatically to the surviving joint tenant(s)
(2) A joint tenant’s interest is ALIENABLE, but NOT devisable, or descendible bc of right to survivorship (it will pass to other joint tenant)
NOTE: Joint Tenancies are disfavored so in addition to the 4 unities, grantor must CLEARLY STATE the right of survivorship to create a joint tenancy
The 4 Unities necessary to convey a Joint Tenancy
T-TIP
(1) Unity of TIME (interests vested at same time)
(2) Unity of TITLE (interests acquired by the same instrument)
(3) Unity of INTERESTS (the interests are identical, in terms of type an duration)
(4) Unity of POSSESSION (both have the right to possess/enjoy the whole)
Use of a Straw
because of the “time” and “title” unities - in many states, have to use a “straw man” to create a joint tenancy
e.g. Dave holds blackacre in fee simple absolute - if he wants to create a joint tenancy with himself and Paul, he has to first transfer it to a “straw man” and then have the “straw” transfer it back to Dave and Paul at the same time and in the same instrument
**NY by statute has made it so there is no need to use a straw man, Dave can convey directly to Dave and Paul as joint tenants
What are the ways in which one can Sever a JOINT TENANCY?
Severance of Joint Tenancy
SPAM - Sale, Partition And Mortgage
(1) Severance and SALE
(2) Severance and PARTITION
(3) Severance and MORTGAGE
Severance and Sale
Severance of a Joint Tenancy
SEVERANCE AND SALE - A joint tenant CAN sell or transfer her interest during her lifetime, and may even do so secretly BUT this SEVERS the JOINT as to the seller’s interest
—- the Buyer becomes a TENANT-IN-COMMON
To the extent that we started with more than two joint tenants in the first place - the joint tenancy remains in tact as between the other, non-transferring joint tenants
In equity, a JOINT TENANT’s mere act of entering into a contract for sale of her share will SEVER the joint tenancy as to the contracting party’s interest
Doctrine of “EQUITABLE CONVERSION” - provides that “equity regards as done that which ought to be done.”
What is the doctrine of “equitable conversion” and how does it apply to the idea of Severance of a JOINT TENANCY?
Doctrine of “EQUITABLE CONVERSION” - provides that “equity regards as done that which ought to be done.”
under this doctrine, a JOINT TENANT’s mere act of ENTERING INTO A CONTRACT for the sale of her share will sever the joint-tenancy as to contracting party’s interest
Severance and Partition
Severance of Joint Tenancy
(The “Break-Up” Plan) - 3 ways to partition
(1) By Voluntary Agreement - the parties seeking dissolution come to a peaceful agreement
(2) Partition in Kind - a court action, if in the best interests of all, for physical division of the land
- –works best when the land is “sprawling acreage” - e.g. a vineyard of a farm that is susceptible to division
(3) Forced Sale - a court action, if in the best interests of all, where the land is sold and the proceeds are divided proportionately
Severance and Mortgage
Severance of Joint Tenancy
The Rule: One Joint Tenant’s execution of a mortgage or lien on his or her share will sever the joint tenancy as to that now encumbered share ONLY IN the minority of states to follow the TITLE THEORY
MAJORITY of states follow LIEN THEORY (including NY**) whereby a JOINT TENANT’s execution of a mortgage on his or her interest WILL NOT sever the JOINT TENANCY
TENANCY BY THE ENTIRETY
***NY RECOGNIZES THIS
Created between MARRIED PARTNERS, with the Right of Survivorship
In those states to recognize the TENANCY BY THE ENTIRETY, it arises presumptively in any conveyance to MARRIED PARTNERS unless stated otherwise
NO INVOLUNTARY PARTITION
***in NY, one spouse MAY mortgage his interest and his creditors may enforce against that interest, but only as to the debtor spouse’s share. Further, the non-debtor spouse’s rights, including the right of SURVIVORSHIP, must not be compromised
Severance of a TENANCY BY THE ENTIRETY
Major distinction between JOINT TENANCY and TENANCY BY THE ENTIRETY concerns SEVERANCE
A Tenancy-by-the-Entirety CANNOT BE terminated by INVOLUNTARY PARTITION
- -It can be terminated only by
(i) the DEATH of either spouse (leaving the survivor the sole owner of the fee)
(ii) DIVORCE (in most states, leaves them as tenants-in-common with no right of survivorship)
(iii) MUTUAL AGREEMENT; or
(iv) EXECUTION of a JOINT CREDITOR of BOTH husband AND wife (a creditor of one or the other cannot execute)
***in NY, one spouse MAY mortgage his interest and his creditors may enforce against that interest, but only as to the debtor spouse’s share. Further, the non-debtor spouse’s rights, including the right of SURVIVORSHIP, must not be compromised
TENANCY-IN-COMMON
(i) Each co-tenant owns an individual part and each has a right to POSSESS THE WHOLE
(ii) Each interest is DEVISABLE, DESCENDIBLE, and ALIENABLE. There are NO SURVIVORSHIP RIGHTS between tenants-in-common
(iii) The presumption favors the Tenancy-In-Common (policy: tenants in common have to go through probate, and cts like this)
(Rights and Duties of Co-Tenants)
TENANCY-IN-COMMON
(1) POSSESSION - each co-tenant is entitled to possess and enjoy the WHOLE
- if co-tenant excludes another it is WRONGFUL OUSTER
(2) RENT from co-tenant in exclusive possession - rent not owed by co-tenant who had exclusive possession
(3) RENT FROM THIRD PARTIES - co-tenant has to account to other tenants for their fair share
(4) ADVERSE POSSESSION - can’t acquire exclusive possession from co-tenants by AP
- —BUT ***NY a co-tenant MAY acquire full title by AP if he is in exclusive possession for 20 continuous years under a theory of “IMPLIED OUSTER”
(5) CARRYING COSTS - each co-tenant responsible for his fair share of carrying costs (taxes and mortgage interest payments, based upon his or her undivided share)
(6) REPAIRS - A tenant who makes REASONABLY NECESSARY repairs enjoys a right to contribution from co-tenants during the life of the co-tenancy
(7) IMPROVEMENTS - During Life of Co-Tenancy, there is no right to contribution for IMPROVEMENTS (but gets benefit and bears burden of increase or decrease in value at partition)
(8) WASTE - A co-tenant MUST NOT COMMIT WASTE (remember 3 species- voluntary, permissive and ameliorative)
(9) PARTITION - A joint tenant or tenant-in-common has a right to bring an action for PARTITION
What are the rights of Co-Tenants with respect to POSSESSION of the land?
(Rights and Duties of Co-Tenants)
POSSESSION - each co-tenant is entitled to possess and enjoy the WHOLE
–If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, he has committed WRONGFUL OUSTER
What are the rights and duties of Co-Tenants with respect to RENT?
(Rights and Duties of Co-Tenants)
RENT from co-tenant in exclusive possession - Absent OUSTER, a CO-TENANT in exclusive possession is NOT liable to the other co-tenants for rent
-ie if greg and marsha are tenants-in-common and marsha leaves for a few months, Greg doesn’t owe her rent because he had it to himself for a few months
