What are the three types of concurrent interests?
Tenancy in Common
Joint Tenancy
Tenancy by the Entirety
What is a Tenancy in Common (TIC)?
Tenants in common have separate but undivided interests in the property
- Undived means they share the same legal lot or lots.
There are NO rights of survivorship.
TIC interests are alienable and descendible.
TIC requires unity of possession: That is, each tenant has a right to possess the whole.
What is a Tenancy by the Entirety (TBE)?
Similar to JT except the parties are seised per tout et non per my (each owns the whole but neither owns an individual interest), the legal fiction that the married couple is a single person.
The four unities are required in the addition of a fifth, the unity of marriage.
A right of survivorship
Need the permission of the other to convey his or her share in the property during his or her life.
Neither party in a TBE can encumber the property with his or her debts.
What is a Joint Tenancy (JT)?
Joint tenants each “own” the undivided whole as well as his/her interest in the whole; each is seised per my et per tout.
Right of Survivorship; when one joint tenant dies, his or her interest goes to the remaining JT.
JT interests are not descendible.
Four Unities Required to create a JT:
Time: the interest of each JT must be acquired or vested at the same time.
Title: All JT must acquire title by the same instrument or by a joint adverse possession.
Interest: All tenants have equal undivided shares and interests of identical duration.
Possession: Each tenant must have a right to possession of the whole. After the JT is created, one JT can voluntarily give exclusive possession to the other JT(s).
If the four unities do not exist it will fail; severance of any of the four unities will turn it from a JT into a TIC.
In all states, the parties to a JT can bring an action for judicial partition.
A joint tenant can convey their interest in the property without asking the others or telling the others during his or her life; CANNOT convey after death.
Maintenance, Repairs, Improvements in Concurrent Interest
Maintenance Expenses (mortgage, property taxes, etc.): A concurrent owner CAN get reimbursed for such expenses either on an on-going basis or during partition.
Repairs (fence fixed): A concurrent owner can get reimbursed for these expenses ONLY during a partition.
Improvements (a pool): A concurrent owner CANNOT get reimbursed either on an on-going basis or during partition, for the COST of the improvement. HOWEVER, some states will credit or debit the improver with the VALUE of an improvement.
What is the Majority Rule with Mortgages in Concurrent Interests?
MAJORITY: Lien Theory
Title in such a state is not transferred unless and until the debtor defaults, a foreclosure of sale of the property has been held, the debtor has not redeemed his or her title thereafter, and title to the property is finally transferred to the purchaser of the property at the foreclosure sale.
What is the Minority Rule with Mortgages in Concurrent Interest?
MINORITY: Title Theory
A creditor does not need to foreclose on a mortgage to obtain title because the creditor has title to the property from the time that the mortgage is created.
With a mortgage, title to the property transfers to the creditor at the creation of the mortgage and the mortgagor is not entitled to receive title back until the entire mortgage loan amount has been repaid.
What is Partition by Sale?
A partition by sale, rather than in kind, should be ordered only when two conditions are satisfied:
- The physical attributes of the land are such that a partition in kind is impracticable or inequitable; and
- The interests of all the owners would be better promoted by a partition by sale.
A sale of one’s property without his consent is an extreme exercise of power warranted only in clear cases.
What is a Partition by Kind?
A physical split of the property.
What is an Owelty Payment?
A payment from one concurrent owner to another concurrent owner in a partition by kind, in order to justify the unfair method in which the property was divided.
Such a payment can also account for differing uses that the owners are going to make of the land after the partition.
What are the Co-tenant Responsibilities in Concurrent Interest?
In the absence of an agreement to pay rent or an ouster of a cotenant, a cotenant in possession is not liable to his cotenants for the value of his use and occupation of the property (MAJORITY RULE)
Each cotenant has a right to possess the entire property; thus, each cotenant has a right to lease the entire property to a third party.
- When a cotenant leases the property to a third party, that cotenant owes his or her fellow cotenant their proportionate share of the rent received from that third party.
- If the lessee in possession ousts a cotenant than the cotenant can obtain directly from the lessee in possession his or her proportionate share of the rent.
- If the cotenants wish to use the property in different ways then they can ask the court to partition the property by kind or by sale.
Rent Owed?: Co-Tenant Owed Rent?
Co-Owner is Ousted- Yes
Co-Owner is NOT Outsted- Depends on the state; BUT in MOST states: Yes
