Property Law: B. Co-Tenancy Flashcards

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1
Q

What is a tenancy in Common

Feb 2009, Essay 4

A

Tenancy in common is the default estate created by a conveyance or bequest of real property to two or more people. Unless there is language the creates a survivorship or tenancy by the entirety.

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2
Q

How to create a tenancy in common?

A

To create a tenancy in common, the grantor does not need to use explicit language.

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3
Q

What does each tenant own?

A

Each tenant in common owns an undivided interest in the property, and has the right to use and enjoy the entire property.

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4
Q

Is there survivorship rights in a tenancy in common?

A

No. There is no survivorship rights with a tenancy in common, and upon death the tenant’s interest passes to their estate.

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5
Q

Joint tenancy: Formation
How do you Form a joint tenancy?
Feb 2009, Essay 4

A

A joint tenancy is a conveyance of real property to two or more persons. It’s formed when the four unities are present

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6
Q

What are the four unities of a joint tenancy?

A
  1. Unity of time
  2. Unity of title
  3. Unity of interest
  4. Unity of possession
    TTIP
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7
Q

What is Unity of time?

A

Unity of time means all interests were acquired at the same time.

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8
Q

What is Unity of title?

A

Unity of title means all interest were required by the same instrument.

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9
Q

What is Unity of interest?

A

Unity of interest means all ownership interests are equal.

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10
Q

What is Unity of possession?

A

Unity of possession means all interests have equal rights of possession.

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11
Q

What must be clear to create a joint tenancy?

A

There MUST be clear EXPRESS INTENT to create a joint tenancy, which may be satisfied by including such terms as “ joint tenants”, “ right of survivorship”, “ joint tenants with right of survivorship”, or even “jointly” (if intent is proven).

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12
Q

What does right of survivorship means?

A

A right of survivorship means that when one joint tenant dies his interest in the land is automatically transferred to the other joint tenant (s).

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13
Q

Joint tenancy: Severance
How do you severe a joint tenancy?
Feb 2020, Essay 2
Feb 2009, Essay 4

A
  1. You can severe by transferring ownership interest.
  2. Convey interest to a third-party.
  3. Takes out a mortgage on her interest
  4. One joint tenant leases the property
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14
Q

What happens when one joint tenant transfers ownership interest?

A

Generally, when one joint tenant unilaterally transfers his ownership interest in the real property, the joint tenancy is severed and the tenants will then hold the property as tenants in common.

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15
Q

What happens when one joint tenant conveys interest to a third-party?

A

When a joint tenant conveys his interest in a joint tenancy to a third-party, that party takes the property as tenants in common.

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16
Q

What happens if there’s only two joint tenants?

A

If there are only two joint tenants, the joint tenancy is severed.

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17
Q

What if there are more than two joint tenants?

A

If there are more than two joint tenants, the joint tenancy remains, but only among the other joint tenants.

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18
Q

What happens when one joint tenant takes out a mortgage on her interest?

A

When a joint tenant takes out a mortgage on her interest, the mortgage’ effect on the joint tenancy will depend on the jurisdiction.

19
Q

What are the two jurisdictions where a mortgage can effect the joint tenancy or not?

A
  1. Lien theory jurisdiction

2. Title theory jurisdiction

20
Q

What does Lien theory jurisdiction means and how it effects the joint tenancy when there’s a mortgage?

A

In a lien theory jurisdiction, the mortgage will NOT sever the joint tenancy.

21
Q

What does Title theory jurisdiction means and how it effects the joint tenancy when there’s a mortgage?

A

In a title theory jurisdiction, the mortgage WILL sever the joint tenancy.

22
Q

What happens when the joint tenancy in a title theory jurisdiction is severed?

A

Once the joint tenancy is severed under a title theory jurisdiction, the tenants will then hold the property as tenants in common.

23
Q

What happens when one joint tenant leases the property?

A

When one joint tenant leases the property, the lease’s effect on the joint tenancy ill depend on the jurisdiction.

24
Q

What is the common law rule in most states regarding a joint tenant leasing property?

A

Most states follow the common law rule that a lease by one joint tenant severs the joint tenancy, wherein it is converted to a tenancy in common.

25
Q

Joint tenancy: lease by one joint tenant.

Feb 2020, Essay 2

A

When one joint tenant leases the property, the lease’s effect on the joint tenancy will depend on the jurisdiction.

26
Q

What is the common law rule in MOST states regarding a joint tenant leasing property?

A

Most states follow the common law rule that a lease by one joint tenant severs the joint tenancy.

27
Q

What is the common law rule in OTHER states regarding a joint tenant leasing property?

A

Other states hold that such a lease does not sever the joint tenancy.

28
Q

What are the middle ground that some courts follow when leasing joint tenant dies before the end of the lease term?

A

Some courts follow a middle ground approach where the joint tenancy is severed only if the leasing joint tenant dies before the end of the lease term; otherwise the leasing joint tenant owns the whole property by right of survivorship if he survives the other tenants.

29
Q

What happens if the joint tenancy is severed?

A

If the joint tenancy is severed, then the co-tenants will own the property as tenants in common.

30
Q

What happens with the remaining lease?

A

A lease by one joint tenant will still remain in effect and will be valid against that leasing joint tenant’s undivided interest (even if the leasing joint tenant dies first).

31
Q

In such a situation will both the lessee and the non-leasing joint tenant have right to occupy the property?

A

In such situation, both the lessee and the non-leasing joint tenant will have the right to occupy the property, and either the lessee not the non-leasing joint tenant can exclude each other.

32
Q

What happens if the joint tenancy is not severed?

A

If the joint tenancy is not severed, then whether the lease terminates depends on which joint tenant dies first.

33
Q

What happens if the leasing joint tenant dies first?

A

If the the leasing joint tenant dies first, then the lease terminates because the property passes to the non-leasing joint tenant by survivorship.

34
Q

What happens if the non-leasing joint tenant dies first?

A

If the non-leasing joint tenant dies first, the lease remains in effect because the property passes to the leasing joint tenant by survivorship.

35
Q

What are the 4 Co-tenant’s Entitlement to rent?

A
  1. Rent from co-tenant
  2. Rent from a third party
  3. Reimbursement for repairs
  4. Reimbursement for improvements
36
Q

Does an out-of-possession co-tenant have a right to receive rent from in-possession co-tenant?

A

No. An out-of-possession co-tenant DOES NOT have the right to receive rent from the in-possession co-tenant, unless the in-possession co-tenant wrongfully ousted the out-of-possession co-tenant from the property.

37
Q

What happens when one co-tenant voluntarily quits (or simply does not use) the property?

A

When one co-tenant voluntarily quits (or simply does not use) the property, the other co-tenant is not liable for rent for his use of the entire property.

38
Q

Can a co-tenant who voluntarily quits or simply does not use the property collect rent from another co-tenant who is in exclusive possession of the premises>

A

No. A co-tenant cannot collect rents from another co-tenant who is in exclusive possession of the premises.

39
Q

How can the co-tenant who voluntarily quits or not using the property bypass the rule and collect rent from another co-tenant in exclusive possession of the property?

A

The co-tenant can bypass this rule if: There is an agreement to the contrary; OR the co-tenant seeking rent was wrongfully ousted.

40
Q

What happens when an in-possession co-tenant Rents to a third-party?

A

If an in-possession co-tenant rents property to a third-party, the out-of-possession co-tenant is entitled to his fair share of the rent paid by the third-party.

41
Q

Is a co-tenant who makes improvements to the property entitled to reimbursement from the other Co-tenants?

A

No. A co-tenant who makes improvement tot he property is NOT entitled to reimbursement from the other co-tenant(s), UNLESS there is a separate agreement tot he contrary.

42
Q

What will happen at the end of the co-tenancy (where there’s a partition or sale of the property)?

A

At the end of the co-tenancy, the improving co-tenant bears all the downside risk of the improvements, but also has all the upside gain.

43
Q

What happens if the property appreciated because of the improvements?

A

If the property appreciated because of the improvements, ONLY the improving co-tenant is entitled to that increase in value.