3. Co-Tenancy

Question 1

What is co-tenancy?

Answer 1

Persons can have right to enjoy and possess land at the same time

Question 2

What is required for a joint tenancy?

Answer 2

1.) Same right to Possession

2. ) Same Interests
   
   • Equal + NOT divided

3.) Vested at same Time

4. ) Same Title
   
   • Same instrument

5) Right of survivorship
- Clearly expressed
- ‘As joint tenants with right of survivorship’

Question 3

How may inter vivos conveyance sever a joint tenancy?

Answer 3

Partition

• Voluntary/Involuntary
• ONLY Grantee’s interest is severed (NOT other JTs)

Mortgage - Lien theory (Most states)
- Mortgage treated as lien and DOES NOT destroy the JT

Mortgage - Title theory (Few states)
- Mortgage severs title and the tenancy between the JTs and the creditor is converted into a tenancy in common.

Leases

• ALL JTs’ interests are severed - Joint tenancy is destroyed (some states)
• NO severance - Joint tenancy is suspended temporarily for duration of lease (some states)

Question 4

How may a contract to convey sever a joint tenancy?

Answer 4

Single JT conveys
- Even if NO title transferred yet (equitable transfer)

ALL JTs convey

• Severance (other courts) (equitable conversion doctrine) (Joint tenancy becomes mere contract right to receive purchase price) (TiC statutorily presumed)
• NO severance (common law)

Question 5

Can a joint tenant’s will sever a joint tenancy?

Answer 5

No

- Joint tenant’s rights in property disappear at time of death

Question 6

Can a joint tenant’s murder of another joint tenant sever a joint tenancy?

Answer 6

Yes (some states)

No (some states)
- Constructive trust is imposed on Deceased Joint Tenant’s estate

Question 7

What is required for right of survivorship in a tenancy by the entirety?

Answer 7

Marital estate between spouses

- Right of survivorship presumed (common law)

Question 8

How may a tenancy by the entirety be severed?

Answer 8

Death of one spouse

Divorce
- JT => TiC

‘Mutual’ agreement to convey

BOTH spouses’ joint creditors’ execution

‘Federal’ tax liens

Question 9

How may a tenancy by the entirety not be severed?

Answer 9

‘Single’ agreement to convey (Involuntary partition)

Encumbrance

Deed

Question 10

What is the difference between severance of joint tenancy and tenancy by the entirety?

Answer 10

Joint tenancy

• Voluntary + involuntary partition
• Single mortgage (title theory); Single mortgage + Foreclosure (lien theory)

Tenancy by the entirety

• Voluntary partition
• Joint mortgage

Question 11

What is a tenancy in common?

Answer 11

1) Different interests
- NOT equal
- Undivided

2) Same right to possession
3) NO right of survivorship (presumed)

Question 12

Can a tenant in common transfer his interest?

Answer 12

Voluntary

• Inter vivos transfer
• Testamentary transfer
• Inheritance

Involuntary
- Creditors

Question 13

How can a co-tenant bring a possessory action against another co-tenant?

Answer 13

Ousting (wrongful exclusion)

• ALL Co-tenants have right to possess whole property
• NO Co-tenant has exclusive possession

Question 14

Is a co-tenant in possession required to share from the profits and rents with co-tenants out of possession?

Answer 14

Rents from TP

Profits from exploitation of land (reduce value)

NOT profits/rents from ‘own’ use of land
- UNLESS contrary agreement/ouster

Question 15

How may co-tenants enforce their right to judicial partition?

Answer 15

Partition in kind (fair + equitable)

• Divide tract into parcels
• Must be fair + equitable

By sale + division of proceeds

• If partition in kind NOT fair + equitable
• Must account co-tenants’ profits + taxes

Question 16

Are co-tenants liable to one another in other agreements?

Answer 16

Yes

• BOTH must be included in agreements
• BOTH are entitled to whole possession => BOTH are liable to property

Question 17

Are co-tenants liable to pay taxes?

Answer 17

Yes

- Individual amounts (in proportion to their ownership interest)