Tenancy in Common

Question 1

Tenancy in common
(default of co-tenancy)

Answer 1

is created by a conveyance or devise to two or more people that does not create either a joint tenancy or a tenancy by the entirety.
-> Both tenants have an equal right to possess the whole.
-> Upon death, each co-tenant’s share passes with his or her estate. The other co-tenants have no right to the deceased co-tenant’s share.

Question 2

When a tenancy in common is presumed…

Answer 2

such tenancy may be overcome when the 4 unities and proper language exist.

Question 3

4 unities and magic words

Answer 3

in common law, both the magic words and the 4 unities have to exist. Courts now use an intent based approach.

Time: joint tenants had to acquire their interests in the property at the same time.

Title: joint tenants must have acquired their interests by the same instrument(valid deed).

Interest: joint tenants must have the same type of interest for the same duration.

Possession: joint tenants have equal rights to possess the whole.

Question 4

Severance

Answer 4

commonly occurs when one joint tenant transfers her interest to someone else (through a sale or conveyance).
-> Under the intent based approach in evaluating the termination of a joint tenancy, the instrument (deed) must be valid not invalid.
->In title theory jurisdictions, Mortgage, would destroy the joint tenancy, when 1 joint tenant mortgages her individual interest.

Question 5

If the non-mortgaging party died first in a lien theory state…

Answer 5

the mortgaging party would now have 100% interest in the property in a fee simple, and the entire property would be encumbered by the mortgage.
-> the mortgagee(bank) took their interest subject to the rights of survivorship.