Concurrent Estates

Question 1

What are the three forms of concurrent ownership?

Answer 1

1. Joint tenancy
2. Tenancy by the entirety
3. Tenancy in common

Question 2

What is a joint tenancy?

Answer 2

Two or more own the property with the right of surviorship.

Question 3

What is a tenancy by the entirety?

Answer 3

A marital interest w/ the right of surviorship

Question 4

What is a tenancy in common?

Answer 4

Two or more own w/ no right of surviorship

Question 5

What are the distinguishing characteristics of a joint tenancy?

Answer 5

• The right of surviorship- when one joint tenant dies his share goes to the surviving joint tenants)
• A joint tenants interest is alienable (i.e. transferable via sale or transfer), it is NOT devisable or descendable because of the right of survivorship

Question 6

How is a joint tenancy created?

Answer 6

1. The four unities (“T-TIP”). Joint tenants must take their interests:

• At the same Time.
• By the same Title in the same instrument.
• Identical interest, and
• with rights to Possess the whole

2. Grantor must clearly express the right of surviorship.
3. Use of a straw (the middleman) (p. 28 of handout)

Question 7

How is a joint tenancy severed?

Answer 7

Remember “SPAM”: Sale, Partition And Mortgage

1. Severance and Sale.

• A joint tenant can sell or transfer her interest during her lifetime. She can do so even w/o the others knowledge or consent.
• In equity, a joint tenant’s mere act of entering into a contract for the sale of her share will severe the joint tenancy as to the contracting parties interest. This is because of the doctrine of equitable conversion, which provides that “equity regards as done that which ought to be done.”

2. ** Severance and Partition.**

• By voluntary agreement
• Partition in kind (court action; physical division of property if in the best interest of all; best for property sucsceptible to division)
• Forced sale (court action; best interests of all if property is sold and the sale proceeds are divided proportionately; best when property not susceptible to division)

3. ** Severance and Mortgage**
   * Rule: One joint tenant’s execution of a mortgage or a lien on his or her share will sever the joint tenancy as to that now encumbered share only in the minority of states to follow the title theory of mortgages. By contrast, the majority of states follow lien theory of mortgages, whereby a joint tenant’s execution of a mortgage on his or her interest will not severe the tenancy.

Question 8

What is tenancy by the entirety and how is a tenancy by the entirety created?

Answer 8

Between married partners with the right of surviorship; marital interest. In those states to recognize the tenancy by the entirety, it arises presumptively in any conveyance to married partners unless stated otherwise.

This is a very protected form of co-ownership. Creditors of only one spouse can’t reach this tenancy; impenatrable. Neither tenant, acting alone, can defeat the right of surviorship by unilateral transfer to a third party.

Question 9

What are the distinguishing characteristics of a tenacy in common?

Answer 9

• Each co-tenant owns an individual part, and each has a right to possess the whole
• Each interest is descendable, devisable, and alienable. There are no surviorship rights.
• The presumption favors the tenancy in common.

Question 10

What are the rights and duties of co-tenants under a tenancy in common?

Answer 10

• Right to possess and enjoy the whole. If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any party, he has committed wrongful ouster.
• Rent from co-tenant in exclusive possession. Absent ouster, a co-tenant in exclusive possession is not liable to the others for rent.
• Rent from third parties. A co-tenant who leases all or party of the premises to a third party must account to his co-tenants providing them there fair share of the rent income equal to undivided interest in the whole.
• Adverse Possession. Unless he has ousted the other co-tenants, one co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the exclusion of the others because the hostility element of adverse possession is absent. There is no hostility because there was no ouster.
• Carrying costs. Each co-tenant is responsible for his or her fair share of carrying costs (such as taxes and mortgage interest payments, based upon his/her individual share.
• Repairs. The repairing co-tenant enjoys a right to contribution for reasonable and neccessary repairs provided that she has told the others of the need (in fairness to others).
• Improvements. During the life of the co-tenancy, there is no right to contribution for “improvements” (subjective). However, at partition, the improving co-tenant is entitled to a credit, equal to any increase in value caused by her efforts. Attendantly, at partition, the so-called “improver” bears full liability for any drop in value caused by her efforts (deminution in value).
• Waste. A co-tenant must not commit waste. A co-tenant can bring a waste action during the lie of the co-tenancy/ relationship.
  
  • Voluntary - destruction
  • Permissive - Neglect
  • Ameliorative - Chanages that increase value.
• Partition. A joint tenant or tenant in common has a right to bring an action for partition.