Property (Day 2)

Question 1

Concurrent Estates (3)

Answer 1

(1) Joint Tenancy: two or more own with the right of survivorship
(2) Tenancy by the Entirety
(3) Tenancy in Common

Question 2

Joint Tenancy: Distinguishing Characteristics

Answer 2

(1) The right of survivorship (when one joint tenant dies, his share goes automatically to the surviving joint tenant(s); (2) a joint tenant’s interest is alienable; however, it is NOT devisable or descendable.

Question 3

Joint Tenancy: Creation (4)

Answer 3

(1) The four unities [T-TIP]: (T) at the same time, (T) by the same title, (I) with identical interests, and (P) rights to possess the whole; (2) Grantor must clearly express the right of survivorship [Joint tenancies are disfavored. Thus, in addition to the four unities, grantor must clearly state the right of survivorship; (3) Use of a straw.

Question 4

Joint Tenancy: Severance of a Joint Tenancy (SPaM)

Answer 4

(1) Severance and Sale;
(2) Severance and Partition; and
(3) Severance and Mortgage.

Question 5

Joint Tenancy: Severance of a Joint Tenancy–SALE

Answer 5

(1) A joint tenant can sell or transfer her interest during her lifetime; (2) In equity, a joint tenant’s mere act of entering into a contract for the sale of her share will sever the joint tenancy as to the contracting party’s interest. (This is because of the “Doctrine of Equitable Conversion” which provides that “equity regards as done that which ought to be done.”)

Question 6

Joint Tenancy: Severance of a Joint Tenancy–PARTITION

Answer 6

(1) By voluntary agreement (peaceful)
(2) Partition in kind (if in the best interest of all ct. divides scrawling acreage)
(3) Forced sale (if in the best interest of all ct. divides buildings)

Question 7

Joint Tenancy: Severance of a Joint Tenancy–MORTGAGE

Answer 7

One joint tenant’s execution of a mortgage or a 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 of mortgage; By contrast, the majority of states follow the lien theory (like in Illinois) of mortgages, whereby a joint tenant’s execution of a mortgage on his or her interest will NOT sever the joint tenancy.

Question 8

Tenancy of the Entirety: Creation

Answer 8

Between married partners with the right of survivorship. (In those states to recognize the tenancy by the entirety, it arises presumptively in any grant to married partners, UNLESS stated otherwise.)

Question 9

Tenancy of the Entirety: A Protected Form of Co-Ownership

Answer 9

“Can’t touch this!”

(1) Creditors of only one spouse cannot touch this tenancy
(2) Unilateral conveyance: neither tenant, acting alone, can defeat the right of survivorship by unilateral transfer to a third party

Question 10

Tenancy in Common: Three Features

Answer 10

(1) Each co-tenant owns: an individual part, and each has a right to possess the whole.
(2) Each interest is devisable, descendable, and alienable. There are no survivorship rights between tenants in common.
(3) The presumption favors the tenancy in common.

Question 11

Rights and Duties of Co-Tenants

Answer 11

(1) Possession
(2) Rent from co-tenant in exclusive possession
(3) Rent from third parties
(4) Adverse possession
(5) Carrying costs
(6) Repairs
(7) Improvements
(8) Waste
(9) Partition

Question 12

Four Leasehold or Non-Freehold Estates

Answer 12

(1) Tenancy for Years
(2) The Periodic Tenancy
(3) The Tenancy at Will
(4) Tenancy at Sufferenace

Question 13

Rights and Duties of Co-Tenants: Possession

Answer 13

Each co-tenant is entitled to possess the whole; If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, he has committed wrongful ouster.

Question 14

Rights and Duties of Co-Tenants: Rent from co-tenant in exclusive possession

Answer 14

Absent ouster, a co-tenant in exclusive possession is NOT liable to the other for rent.

Question 15

Rights and Duties of Co-Tenants: Rent from third parties

Answer 15

A co-tenant who leases all or part of the premises to a third party must account to his co-tenants (by providing them their fair share)

Question 16

Rights and Duties of Co-Tenants: Adverse possession

Answer 16

NEED TO CHECK THIS

Question 17

Rights and Duties of Co-Tenants: Carrying Costs

Answer 17

Each co-tenant is responsible for his or her fair share of carrying costs (such as taxes and mortgage interest payments), based upon his undivided share.

Question 18

Rights and Duties of Co-Tenants: Repairs

Answer 18

The repairing co-tenant enjoys a right to contribution for reasonable, necessary repairs provided that she has told the other of the need.

Question 19

Rights and Duties of Co-Tenants: Improvements

Answer 19

During the life of the co-tenancy, there is no right to contributions for “improvements.” However, at partition, the improving co-tenant is entitled to a credit, equal to any increase in value that she caused. Attendantly, at partition, the so-called “improver” bears full liability for any decrease in volume that she caused.

Question 20

Rights and Duties of Co-Tenants: Waste

Answer 20

A co-tenant must not commit waste. (Recall the three species of waste: voluntary, permissive and ameliorative).

Question 21

Rights and Duties of Co-Tenants: Partition

Answer 21

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