V. Concurrent Interests

Question 1

Tenancy in Common

Answer 1

An ownership interest in real or personal property held by two or more people in separate shares, but with an undivided interest in the whole.

Question 2

How can a Tenancy in Common be created?

Answer 2

Through intervivos conveyance, devise or inheritance

Question 3

Requirement of Tenancy in Common

Answer 3

Must have the unity of possession when the tenancy is created. This is the right of each member to possess and enjoy the whole property, subject to the same right held by all other co-tenants

Question 4

What can a co-tenant do with their share under Tenancy in Common?

Answer 4

Each share is conveyable inter vivos, devisable and descendible. There is NO right of survivorship

Question 5

Common Law v. Modern interpretation of Tenancy in Common Language

Answer 5

CL: in the face of ambiguous language, courts construed the conveyance as creating a joint tenancy or tenancy by the entirety.
Modern: an ambiguous conveyance creates a tenancy in common.

Question 6

Joint Tenancy

Answer 6

An ownership interest in real or personal property held by two or more people in separate shares but with an undivided interest in the whole and with the right of survivorship.

Question 7

How can a Joint Tenancy be created?

Answer 7

Through intervivos conveyance or devise. Since there is right of survivorship, it cannot be created by inheritance.

Question 8

Joint Tenant’s Right of Survivorship

Answer 8

The ownership interest of a deceased joint tenant does not pass to the decedent’s heirs or devisees. Instead, it is extinguished, and the remaining joint tenant’s interests expand to cover the extinguished share.

Question 9

Unities required for Joint Tenancy

Answer 9

Unity of Possession, Time, Title, Interest

Question 10

Unity of Possession

Answer 10

At creation of the interest, each joint tenant must have the right to possess and enjoy the whole property, subject to the same right held by all other joint tenants.

Question 11

Unity of Time

Answer 11

All interests in the joint tenancy must vest at the same time.

Question 12

Unity of Title

Answer 12

All interests in the joint tenancy must arise from the same deed or will.

Question 13

Unity of Interest

Answer 13

Each joint tenant must hold the same interest as every other joint tenant. In other words, each tenant must hold an estate of the same duration.

Question 14

Joint Tenancy Interpretation

Answer 14

You must have a clear intention contrary to a tenancy in common. Ex: to A and B as joint tenants with the right of survivorship

Question 15

What can a tenant do with their share under Joint Tenancy?

Answer 15

An interest in joint tenancy is freely alienable by inter vivos conveyance, without the agreement of other tenants, but the conveyance severs the joint tenancy and converts it into a tenancy in common.

Question 16

Severance by Self for Joint Tenancy

Answer 16

CL: a person could not sever a JT without using a straw transaction
Modern: JT can be severed by deed to oneself

Question 17

Severance by Mortgage- Title Theory

Answer 17

Traditional view- title passes to the mortgagee (lender), subject to a right of redemption in the mortgagor (borrower)

Question 18

Severance by Mortgage- Lien Theory

Answer 18

The mortgagee’s title is only a security title (i.e. one given to secure payment of a debt)

Question 19

Tenancy by the Entirety

Answer 19

An ownership interest in property held only by a husband and wife (or same-sex couple marriage/union where authorized) where the couple holds as one unit and each spouse has the right of survivorship.

Question 20

How to create Tenancy by the Entirety

Answer 20

Can be created by inter vivos conveyance or devise. Cannot be created through inheritance (depending on jurisdiction, turns into JT or TC)

Question 21

Unities required for Tenancy by the Entirety

Answer 21

Possession, time, title, interest, and marriage. Divorce destroys a tenancy by the entirety.

Question 22

Rights and Obligations of Co-Tenants

Answer 22

Generally, co-tenants are not fiduciaries unless they are:

• Family (in some juris.)
• Co-tenant acquires the property by foreclosure or tax sale
• Adverse possession is asserted against co-tenants who are related

Question 23

Rent from Co-Tenants

Answer 23

A co-tenant in possession in most juris. does not owe rent to other co-tenants for the use of the property unless the co-tenants agreed that the rent will be due or the tenant in possession has ousted the other co-tenants from using the property.

Question 24

Rent from Third Parties

Answer 24

A tenant who receives rents or income from third parties must share those rents with other co-tenants in proportion to each tenant’s ownership interest, but only to the extent that the rent exceeds the tenant’s own ownership interest. The amount due is based on actual receipts, not reasonable rental value of property

Question 25

Property Payments- Taxes

Answer 25

Co-tenants are each obligated to pay his or her proportionate share of taxes and are liable in a contribution action. Shares not paid are also recoverable in an accounting or partition action

Question 26

Property Payments- Mortgage

Answer 26

A co-tenant who pays off the principal of a mortgage is entitled to a lien on the property and acts as a new mortgagee. A co-tenant who pays more than his or her proportionate share of the interest can compel the other co-tenants to pay

Question 27

Property Payments- Necessary Repairs

Answer 27

A co-tenant who makes necessary repairs to property is not entitled to contribution from his or her co-tenants because repairs are voluntary. However, the co-tenant can set off any amounts paid against amounts the co-tenant owes in an accounting action or be reimbursed in a partition action.

Question 28

Property Payments- Improvements

Answer 28

A co-tenant who makes improvements to property is not entitled to contribution, to off-set the costs in an accounting or be reimbursed at partition. Instead, the improver receives only the value added by the improvements (the increase in rental value)

Question 29

Rent Due from Co-Tenants Minority Rule

Answer 29

Rent for exclusive possession due upon written demand by other co-tenants

Question 30

What-Might-Happen test (WMH)

Answer 30

• No consideration of facts.
• Determine whether it is possible for the condition to happen after all lives in being at the creation of the interest die plus 21 years.

Question 31

Common Law Wait and See test (W&S)

Answer 31

• Look at the facts.
• Wait and see whether the future interest actually vests or fails with 21 years after all lives in being at the creation of the interest dies.

Question 32

Uniform Statutory Rule Against Perpetuities (USRAP)

Answer 32

Look at facts.
•If interest passes the WMH test, interest is valid without need to wait and see what happens.
•Otherwise, wait and see whether the future interest actually vests or fails within 90 years of the creation of the interest.

Question 33

Physical Partition Action

Answer 33

Physical partition (or partition in kind) is when property is divided physically into separate shares. Only applies to Joint Tenants or Tenants in Common

Question 34

Judicial Partition Action

Answer 34

When property is sold and the proceeds are distributed to the former co-tenants in shares proportionate to their ownership interests.
This is appropriate when the physical attributes of the land make partitioning impracticable, and the interests of the owners would be better promoted by sale.

Question 35

Accounting Action

Answer 35

Action against co-tenants to make them pay another one back, for taxes for example.