special problems, cotenancy, partition rights and duties Flashcards
What are the steps for a RAP problem
Step 1: Identify the type of interest and make sure the RAP applies: • Executory interest; • Contingent remainder; • Vested remainder subject to open; • Purchase option; and • Right of first refusal
Step 2 : Is it possible to interpret the facts so someone can claim an interest more than 21 years after everyone currently alive is dead?
• If yes, the future interest is wiped out and interpret the rest of the grant accordingly.
• If no, the interest will stand.
What are the three kinds of Concurrent Ownership?
Joint Tenancy
Tenancy in Common
Tenancy by the Entirety
Tenancy in Common: what are the rights of the co-tenants?
Each co-tenant owns an undivided possessory interest in the whole of the property.
Joint Tenancy: What are the rights of the co-tenants?
Each co-tenant owns an undivided possessory interest in the whole of the property AND has a right of survivorship.
Explain the right of survivorship under common law and modern majority law.
If you have property that is jointly owned, and one of the co-tenants dies, the property passes to the surviving co-tenant automatically.
o Common Law: A conveyance to two or more people to jointly own property was presumed to create a joint tenancy, unless specifically stated otherwise.
o Modern Majority: A conveyance to two or more people to jointly own property is presumed to create a tenancy in common, unless specifically stated otherwise.
o You MUST use language to demonstrate that you want the right of survivorship attached to the grant.
Under a right of survivorship what happens to the property rights in the examples?
- EXAMPLE: If A and B own property as joint tenants and B dies, the property
- EXAMPLE: If A, B, and C own the property as joint tenants and C dies, C’s interest passes to A and B, and A and B own the property as joint tenants. If B then dies
- automatically passes entirely to A, and A owns the property outright.
- A owns the property alone.
T or F o The right of survivorship takes precedence over a will or inheritance by intestacy.
True
EXAMPLE: A and B own property as joint tenants, B dies and his will provides “I leave all of my interest in real property to C.” Joint tenancy with right of survivorship takes precedence and the will clause will not control. A takes the property.
T or F If there is a tenancy in common (no right of survivorship) a concurrent interest held in a tenancy in common is freely transferable and can be willed away or inherited through intestacy.
True
o Traditionally, a joint tenancy requires four unities (TTIP):
o Today, most jurisdictions do not require the unities of time and title:
Time: Joint tenants must take at the same time;
Title: Joint tenants must take by the same instrument;
Interest: Joint tenants must take equal shares of the same type; and
Possession: Each joint tenant has the right to possess the whole.
only interest and possession.
Tenancy in common only requires unity of possession. Give an example
EXAMPLE: A and B own a piece of property as tenants in common. A owns 25%, B owns 75%. Each owns the entire parcel, but A owns 25% interest and B owns 75% interest.
o Main Differences between Joint Tenancy and Tenancy in Common
Right of survivorship.
Four unities: time, title, interest, and possession.
Tenancy by the Entirety
hint: married couples
o A form of concurrent ownership reserved for married couples, which gives each spouse an undivided interest in the whole of the property and a right of survivorship, unless expressly stated otherwise.
o Can be created by deed or will, but not by descent.
o Not recognized in community property states.
o Tenancy by the Entirety - severance only occurs when:
The spouses jointly convey to a third party;
One spouse conveys to the other spouse; or
The couple divorces.
o Severing a Joint Tenancy Creates a ___________. ____ ____________. How can this be done?
tenancy in common
Done by an inter vivos act of one of the parties.
• Can seek a partition action.
• Joint tenant sells his interest in the property.
EXAMPLE: A, B, and C own property as joint tenants. If C sells his or her interest in the property, it severs the joint tenancy as to C, but remains intact as to A and B.
EXAMPLE: If A, B, and C own property as joint tenants, they each hold a 1/3 interest in the property. When C sells his or her 1/3 interest in the property to D, the joint tenancy remains intact as to A and B, who would have a joint tenancy over 2/3 of the property. They would own the property as tenants in common with D. Joint tenants A and B have a 2/3 interest, D would have a 1/3 interest.
• Joint tenant mortgages his/her interest in the property.
o Majority View (Lien Theory Jurisdiction): Mortgage is viewed as a lien on the property, will not sever.
o Minority View (Title Theory Jurisdiction): Mortgage is viewed as a title to the property, will sever.
o Giving out a lien on the property will not sever a joint tenancy, but what will?
but transferring title to the property will sever a joint tenancy.
EXAMPLE: If A and B own property as joint tenants and B mortgages his or her interest in the property in a lien theory jurisdiction, it will not sever the joint tenancy. In a title theory jurisdiction, when B mortgages his or her interest in the property, it has the effect of transferring title and will sever the joint tenancy, turning it into a tenancy in common.
