Property Learning Questions - Set 1 Flashcards
At common law, a conveyance of property from O “to O and A as joint tenants with right of survivorship” creates a __________.
A
Tenancy for years
B
Tenancy by the entirety
C
Tenancy in common
D
Joint tenancy
C
At common law, a conveyance of property from O “to O and A as joint tenants with right of survivorship” creates a tenancy in common. There are three forms of concurrent ownership in land: joint tenancy with right of survivorship, tenancy in common, and tenancy by the entirety. In a joint tenancy, each co-tenant owns an undivided share of the property, and the surviving co-tenant has the right to the whole estate (right of survivorship). At common law, four unities are required to create a joint tenancy: (i) time (interests vested at the same time), (ii) title (interests acquired by the same instrument), (iii) interest (interests of the same type and duration), and (iv) possession (interests give identical rights to enjoyment). If these four unities are not present, a joint tenancy cannot be created at common law. Instead, a tenancy in common results. A tenancy in common is a concurrent estate with no right of survivorship. A tenancy by the entirety is a marital estate akin to a joint tenancy in that four unities (plus a fifth—marriage) are required for its creation, and the surviving spouse has the right of survivorship. A conveyance from O “to O and A” does not satisfy the unities of time and title because O acquired his interest first by another instrument. Thus, the conveyance creates a tenancy in common rather than a joint tenancy.
The conveyance does not create a tenancy by the entirety at common law because, as explained above, it does not satisfy the unities of time and title, and the facts do not indicate that O and A are husband and wife.
The conveyance does not create a tenancy for years at common law. A tenancy for years is a leasehold estate in land wherein the tenant has a present possessory interest in the leased premises and the landlord has a reversion. Here, O and A are not in a landlord-tenant relationship.
If A and B own property as joint tenants, and B dies leaving a will devising her interest in the property to C, who owns the property?
A
C only
B
A and C, as joint tenants
C
A only
D
A and C, as tenants in common
C
If A and B own property as joint tenants, and B dies leaving a will devising her interest in the property to C, A only owns the property. A testamentary disposition by one joint tenant will not sever a joint tenancy. A will devising a joint tenant’s interest to another is inoperative as to joint tenancy property because when the co-tenant who is the testator dies (which is when the will becomes effective), her rights in the joint tenancy property are extinguished, and the will has no effect on them. Thus, upon B’s death the property is freed from her concurrent interest, leaving A the sole owner and C with no interest in the property.
On the other hand, certain acts by one joint tenant will sever a joint tenancy (e.g., suit for partition, inter vivos conveyance by one joint tenant, execution of a mortgage by one joint tenant in a title theory state). Then, the transferee takes the interest as a tenant in common and not as a joint tenant. Thus, if B had successfully conveyed her interest to C by deed, A and C would own the property as tenants in common but not as joint tenants. Alternatively, if A and B had owned the property as tenants in common, B’s will would have effectively conveyed her interest to C, so that A and C would own the property as tenants in common. Furthermore, C only would be incorrect in any event because B can convey no greater interest than the one-half interest she owns.
When property is held in joint tenancy or tenancy in common, which of the following is not a co-tenant’s right?
A
Mortgage her interest
B
Share in rents paid by third parties
C
Compel contribution for the cost of improvements
D
Possess the entire estate
C
Although a joint tenant or tenant in common may have a right to compel contribution from other co-tenants for the cost of necessary repairs, taxes, and payments due on mortgages, she does not have a right to compel contribution for the cost of improvements.
Under the unity of possession, each co-tenant has a right to possess the entire estate subject to the equal right of her co-tenant. A co-tenant out of possession cannot bring a possessory action unless there has been an “ouster” (i.e., wrongful exclusion) by the co-tenant in possession.
Although a co-tenant generally is not entitled to share in the rental value of the land, she does have a right to share in rents paid by third parties .
A joint tenant or tenant in common may mortgage her interest. However, she may not encumber another co-tenant’s interest. Note that an individual spouse may not mortgage her interest in tenancy by the entirety property.
How will the proceeds from a partition sale of property initially held by four joint tenants (A, B, C, and D) be divided if A sold her interest to E, and B died, leaving her property to F and G?
A
F and G get 1/8 each; C, D, and E get 1/4 each
B
C, D, and E get 1/3 each
C
C and D get 3/8 each; E gets 1/4
D
C and D get 1/2 each
C
The proceeds from a partition sale of property initially held by four joint tenants (A, B, C, and D), after A sold her interest to E, and B died, leaving her property to F and G, would be divided as follows: C and D get 3/8 each; E gets 1/4. The distinguishing feature of a joint tenancy is the right of survivorship. When property is held by three or more joint tenants, one joint tenant’s conveyance destroys the joint tenancy only as to that interest. The remaining joint tenants continue to hold in joint tenancy as between themselves, and the grantee holds his interest as a tenant in common with them. When A sold her interest to E, that 1/4 interest was severed and thus converted into a tenancy in common, which E continues to hold. Thus, E gets A’s 1/4 share. When one joint tenant dies, the property is freed from her interest, and the survivors retain an undivided right in the property. Since B’s interest was extinguished on her death, B’s devisees do not take B’s interest; the surviving joint tenants hold free of it. This leaves C and D as joint tenants with right of survivorship, together owning a 3/4 interest in the land. A joint tenancy is terminated by a suit for partition. When the partition sale was ordered, this joint tenancy was converted into a tenancy in common, and split equally between C and D. Thus, C and D each will receive 3/8 of the partition proceeds.
The proceeds would not be divided so that C and D get 1/2 each. A severed her interest in the joint tenancy when she sold her interest to E. However, as is explained above, E now holds that interest as a tenant in common. Thus, E is entitled to 1/4 of the partition proceeds.
The proceeds would not be divided so that C, D, and E get 1/3 each. This would be the case if E took A’s share as a joint tenant, but as is explained above, E took as a tenant in common. Thus, E’s share does not increase on B’s death, because he does not have the benefit of the right of survivorship.
The proceeds would not be divided so that F and G get 1/8 each, and C, D, and E get 1/4 each. F and G do not take B’s share on her death. When a joint tenant dies, her share is divided among the surviving joint tenants. This is the essence of the right of survivorship. Moreover, a devise, unlike an inter vivos conveyance, will not sever a joint tenant’s interest. Thus, B’s devisees take nothing, and C, D, and E take as discussed above.
A man and a woman purchased a parcel of land, taking title as joint tenants. Two years later, they married and had a son. Several years after that, the man and woman divorced. After the divorce, the woman and her son continued to occupy the land, although title remained in the names of both the man and the woman. The man moved out of the state and conveyed all of his title and interest in the land by deed to the son. Shortly thereafter, the man was killed in an automobile collision. The man died intestate.
Who has title to the land?
A The woman.
B The woman owns one-half and the man’s heirs own one-half.
C The woman and her son as joint tenants.
D The woman and her son as tenants in common.
D
The woman and her son have title to the land as tenants in common. The man and the woman took title to the land as joint tenants. An inter vivos conveyance by one joint tenant of his undivided interest severs the joint tenancy, so that the transferee takes the interest as a tenant in common and not as a joint tenant. Here, there was an inter vivos conveyance by the man to the son of all of the man’s interest in the property held in joint tenancy with the woman. This conveyance destroyed the joint tenancy, so that the son takes his interest in the property as a tenant in common with the woman, rather than as a joint tenant. (A) is incorrect because the severance of the joint tenancy destroyed the right of survivorship. A joint tenancy carries with it a right of survivorship, whereby the death of one joint tenant frees the property from his concurrent interest, so that the surviving joint tenant retains an undivided right in the property that is no longer subject to the interest of the decedent. Had the man died without having conveyed his interest in the land, the woman would have held an undivided interest in the property, free of the man’s interest. However, because the joint tenancy had been terminated prior to the man’s death, there is no right of survivorship. Note also that the estate held by the man and the woman was not a tenancy by the entirety, which is a marital estate similar to a joint tenancy between a husband and wife. This estate arises presumptively (in some states) in any conveyance made to a husband and wife, and carries a right of survivorship. Here, the man and the woman took title to the land prior to their marriage, and their subsequent marriage does not affect the nature of their title. This is important because in a tenancy by the entirety, one spouse cannot convey any interest. (B) is incorrect because the man conveyed his interest in the land to the son. Thus, there is no interest or right in the land to which the heirs of the man can succeed under the intestacy laws. In addition, even if there had been no conveyance, the man’s heirs would not have succeeded to his interest in the land. Rather, the woman would have taken an undivided interest in the property by means of the right of survivorship. (C) is incorrect because one joint tenant cannot convey his right of survivorship. When a joint tenant conveys his interest, it automatically becomes a tenancy in common interest. This is because the unity of time (one of the four unities required for creation of a joint tenancy) is lacking. To be joint tenants, the interests of the co-tenants must vest at the same time. Here, the woman and the man’s interest vested at the same time, but the son’s vested much later. Thus, the woman and her son cannot be joint tenants.
Twenty years ago, an uncle conveyed his real property to his niece and nephew as tenants in common. The niece and nephew were estranged, however, so only the niece moved onto the property. Last year, the nephew sued the niece for an accounting for the years that she had exclusive possession of the property. The statutory period for adverse possession in this jurisdiction is 15 years.
Is the accounting likely to be granted?
A Yes, because the niece occupied or controlled more than half of the land.
B Yes, because the niece ousted the nephew from possession.
C No, because the nephew had the right to use the property but chose not to do so.
D No, because the niece has held the property for the statutory period required for adverse possession.
C
The niece had the right to possess and enjoy the whole of the property subject to the equal right of the nephew to do the same. The fact that the nephew chose not to exercise his right does not make the niece’s possession wrongful. Therefore, an accounting is not warranted here. (A) is wrong because, as stated, the niece may enjoy the whole of the property. (B) is wrong because there is nothing in the facts to indicate an ouster. (D) is wrong because the niece cannot take by adverse possession unless there has been an ouster; her possession was not hostile to the nephew’s interest.
Two partners bought a commercial building from an owner. They paid cash for the building and took title as joint tenants with right of survivorship. Several years later, the first partner executed a mortgage on the building to secure a personal loan to a bank. The second partner had no knowledge of the mortgage to the bank. The state in which the commercial building is located recognizes the lien theory of mortgages. The first partner died before paying off his loan. He left all of his property by will to his daughter, his only heir.
Who has title to the commercial building?
A The second partner has title free and clear of the mortgage.
B An undivided one-half is held by the second partner free and clear of the mortgage, and the other one-half is held by the daughter, subject to the mortgage.
C An undivided one-half is held by the second partner and the other one-half by the daughter, with both halves subject to the mortgage.
D The second partner has title to the entire property, with an undivided one-half being subject to the mortgage.
A
The second partner has title free and clear of the mortgage. When the partners bought the property, they took title as joint tenants with right of survivorship. If the joint tenancy continued until the first partner’s death, then the property would pass immediately on death to the second partner. Because the second partner did not sign the mortgage, she would not be subject to it, regardless of whether she knew about it. The key to answering this question is to know whether execution of the mortgage by the first partner caused a severance of the joint tenancy. If it did cause a severance, then the first partner’s one-half would not pass to the second under right of survivorship but instead would pass to the first’s estate, and thus would go to the daughter by will. Whether a mortgage creates a severance or not depends on whether the state follows the lien theory or the title theory of mortgages. Lien theory means no severance; title theory means severance. Because this is a lien theory state (majority rule on the MBE), there was no severance; thus, the joint tenancy remained intact. On the first partner’s death, the joint tenancy ended and the first partner’s interest instantly passed to the second partner. The first partner’s estate got nothing; hence, the daughter could get nothing. (B) would be the correct answer if the execution of the mortgage had created a severance of the joint tenancy. The severance would have changed the joint tenancy to a tenancy in common. The second partner would keep her one-half, free of the mortgage she did not sign, and the daughter would inherit the first partner’s one-half, subject to the mortgage the first partner signed. Because we are told this is a lien theory state, there was no severance when the mortgage was executed so the joint tenancy remained intact until the first partner’s death. (C) is incorrect. Not only is the joint tenancy unsevered so that it remains intact to give title to the entire property to the second partner, but also under no circumstances could the second partner be held liable for a mortgage she did not enter into. (D) is incorrect. When the first partner died, the property passed free and clear to the surviving joint tenant. The mortgage signed by the first partner did not sever the joint tenancy because this is a lien theory state. The mortgage can be held only against the property the first partner has; when the first partner died, the right of survivorship operated to end the first partner’s interest and automatically vested it in the survivor.
A landowner conveyed her parcel of land to “my brother and my sister jointly, with right of survivorship.” Shortly thereafter, the brother was in an automobile accident. The driver of the other vehicle sued the brother on a theory of negligence, and obtained a judgment in the amount of $250,000. Because the brother did not have insurance or enough cash to satisfy the judgment, the driver levied on the brother’s interest in the land.
What interest will the driver most likely take?
A None, because the brother’s interest in the land cannot be partitioned.
B An undivided one-half interest, regardless of whether the brother and the sister’s title to the land is construed as a joint tenancy or a tenancy in common.
C An undivided one-half interest, assuming the brother and the sister’s interest is construed as a tenancy in common and not a joint tenancy.
D A contingent right of survivorship that will vest if the brother survives the sister.
B
The driver will get an undivided one-half interest in the land regardless of the status of the brother and the sister’s title. A joint tenancy is a concurrent estate with a right of survivorship, while a tenancy in common does not have a right of survivorship. At common law, the conveyance here would qualify as a joint tenancy because the unities of time, title, interest, and possession are present in the conveyance. Although under modern law a joint tenancy must be created with specific language or else it will be presumed to be a tenancy in common, the conveyance here still would probably qualify as a joint tenancy, even though it did not use the words “joint tenancy,” because it contained the “right of survivorship” language. However, regardless of whether the estate is characterized as a joint tenancy or a tenancy in common, one tenant’s interest may be transferred without the consent of the other tenant, and a creditor may levy on the interest. In most jurisdictions, a lien against one joint tenant’s interest does not sever the joint tenancy until the lien holder proceeds to enforce it by foreclosure. At that point, the purchaser at the foreclosure sale will hold the property as a tenant in common with the other tenant, but will still have an undivided one-half interest in the property unless and until he brings an action to partition the estate. (A) is incorrect because both joint tenancies and tenancies in common may be subject to partition. (In contrast, tenancies by the entirety cannot be terminated by involuntary partition.) (C) is incorrect because, as discussed above, a joint tenant may validly convey or encumber his interest in the property. (D) is incorrect because the driver does not have a contingent interest; she has a present lien on the brother’s interest that can be enforced immediately by foreclosure, which would sever the joint tenancy.
