tenancy in common
Characteristics:
o Undivided interest
o Different fractional interests are allowed
o Each is entitled to simultaneous possession and enjoyment of the whole parcel
tenancy in common
concurrent tenancy that doesn’t have the right of survivorship
tenancy in common transfers
- interests may be given away
- there is no need to get consent of co-owners for transfers
joint tenancy four unities
time
title
interest
possession
joint tenancy transfers
Severed when one of the joint owners transfers their interest during their lifetime
* Severance only occurs between the selling owner and the remaining owners; it does not change the relations of the remaining owners among themselves
joint tenancy & tenancy by the entirety
tenancies with right to survivorship
time unity
() → unity acquire title to estate at the same time
title unity
() unity → acquire title by the same deed or will, or by joint adverse possession
interest unity
() unity→ each interest must be identical (owns the same fractional interest in the same estate)
possession unity
() unity → each joint tenant must have an equal right to possession of the entire parcel
joint tenancy
characteristics:
o four unities
o Undivided interests
o Equal fractional interests
o Right of survivorship
Interest cannot be devised or descend by intestate succession (unless severed during lifetime)
o May transfer interest during life without consent but will sever the joint tenancy, becomes tenancy in common
o May encumber the property, generally will not last after death but will last after sale
tenancy by the entirety
Characteristics:
o Four unities plus marriage
o Same as joint tenancy
o Right of survivorship strongly protected
May be partitioned at divorce
profits
co-owners are entitled to share any rents or other profits from the property
o The shares are based on the fractional interest in the property of each co-owner
burdens
generally have a duty to share basic expenses to keep up the property
o This includes mortgage payments, property taxes, assessments, property insurance, & the basic maintenance and necessary repairs of the premises
exclusive possession
Where the co-owner exclusively possesses the premises & the value of her occupancy exceeds the expenses, then the tenant in possession will have the burden of paying all expenses
FORMULA:
(carrying costs – rental value) / no. of tenants = share of tenant out of possession
improvements
No duty to pay for improvements but the improving party may claim the amount at the time of sale/partition if it increases the value at the partition or sale
*FORMULA:
Step 1
(amt. of sale from house – amt. of improv. Increases value) / no. of owners = amt. each person received from the sale
Step 2
amt. of sale from house + (amt. that improv. increases value/no. of owners who made the improvement) = amt. each person receives that paid for the improvement
carr v deking holding
a co-owner has the right to lease one’s own interest in the common property to another without consent of the other owner and without the co-owner joining the lease
o The lessee takes the place of the co-owner during the leasehold and becomes a tenant-in-common with the remaining co-owner until the end of the leasehold
tehnet v boswell holding
a lease entered into by a joint tenant does not sever the joint tenancy
o Partial alienation, such as a lease does not sever any of the four unities
o A lease entered into by a joint tenant expires upon the deatof that tenant due to rights of survivorship
sawada v endo holding
Creditors cannot reach property held in Tenancy by the Entirety to satisfy debts of one spouse: even if the property is sold or the debtor spouse survives the non-debtor
The Creditor has no claim on the estate
partition in kind
Physical division of the property into separate parcels
* Preferred method
partition by sale
Property is sold and the money is divided according to the cotenants respective shares
* Done if physical division of land is impossible, impracticable, or inequitable
