Property II Flashcards
What is concurrent ownership?
Each individual with an interest has equal right to use and possess the entire property
What are the three modern concurrent estates?
- Tenancy in common
- Joint tenancy
- Tenancy by the entirety
What does the modern trend focus on when determining what type of concurrent ownership was created by a conveyance?
Modern trend focuses more on grantor’s intent and less on the formulaic language.
It also allows a holder to convey a joint tenancy to themselves and another, which traditionally required a conveyance to a straw person to preserve the unity of time, title, interest and possession.
How do you convey a tenancy in common?
O to A and B = A and B have join rights to use and possess
Pref language = O to A and B as tenants in common
What are the rights under tenancy in common?
- Each tenant has an undivided, fractional interest in the property.
- Each tenant can transfer their interest (freely alienable, devisable, descendible)
- Each has the right to use and possess the whole parcel even if the fractional interest is smaller than the interest of the others.
How do you convey a joint tenancy?
O to A and B as joint tenants with right of survivorship = creates a joint tenancy in most jurisdictions
What are the rights under joint tenancy?
- Each Joint Tenant has the right to undivided use and possession of entire property
- Each joint tenant has a right of survivorship wherein the last surviving interest holder becomes the sole owner.
- Because the right of survivorship is contingent, a joint tenancy is neither devisable or descendible
At Common Law, what are the four unities that must be present to be a valid joint tenancy transfer?
- Time - all interests must be acquired at the same time
- Title - all joint tenants must acquire their title through the same instrument
- Interest - all joint tenants must have the same share in the estate, equal in size and duration
- Possession - all joint tenants must have an equal right to possess, use, and enjoy the whole property
How do you convey a tenancy by entirety?
O to A and B as tenants by the entirety
Pref language = O to A and B as husband and wife as tenants by the entirety
What must you be to share a tenancy by entirety?
Only married couples can hold property by tenancy by the entirety
What are the rights of a tenancy by entirety?
- Each tenant has undivided right to use and possess the whole property
- Each TBE has a right of survivorship
How can a tenancy by entirety be severed?
Only through death, divorce, or agreement on both sides
What are the views of common law on tenancy by entirety?
- Viewed husband and wife as “one flesh”
- Many jurisdictions allow this interest to shield assets from creditors
