Concurrent Estates In Land

Question 1

Joint Tenancy

Answer 1

Two or more own with the right of survivorship.

Creation — four conditions must concurrently exist when the tenants take their interests:
1. Time — JTs must take their interests at the same time.
2. Title — JTs must receive conveyance through the same instrument/by same title
3. Interest — JTs must take equal and identical interests
4. Possession — JTs must have equal possessory rights/right to possess whole
• Express intent required—grantor must expressly intend to create a JT; otherwise, a tenancy in common is presumed
• Right of survivorship—if one JT dies, surviving JTs automatically take equal possession of deceased JT’s share
• Transferability—alienable, but not devisable or descendible

Severance & transfer of interests:
• Severance—severance by any JT creates a tenancy in common ONLY with respect to the severed interest
• Transfer—a JT interest becomes a tenancy in common upon transfer; this does not destroy the entire JT if two or more JTs remain
• Mortgage—lien theory (majority) vs. title theory (minority)
» Lien theory Jx—JT can take a mortgage on her interest without severing JT (b/c no title passes to mortgagee)
» Title theory Jx—JT is severed if any JT takes a mortgage on her interest b/c title passes to the mortgagee

Question 2

Tenancy by the Entirety

Answer 2

Marital estate, similar to JT, but between a married couple
• Creation—created by conveyance to a married couple and requires the same four conditions as a JT (time, title, interest, possession)
• Tenancy by the entirety is presumed in any conveyance made jointly to a married couple

Characteristics:
• Right of survivorship—property automatically passes to surviving spouse
• No unilateral right to transfer or encumbrance—one spouse may not unilaterally convey or partition her interest; attempt to do so is invalid and will not destroy the tenancy
• Protected from creditors—creditors of one spouse cannot reach that spouse’s interest; only creditors of the couple (i.e., joint creditors) can reach a tenancy by the entirety

Severance—three ways a tenancy by the entirety can be severed, which creates a tenancy in common:
1. Death of one co-tenant
2. Issuance of a divorce decree
3. Execution of a lien by a joint creditor (e.g., foreclosure)

Question 3

Tenancy in Common

Answer 3

An estate with multiple tenants in which each co-tenant owns a distinct, undivided interest and each has a right to possession of the whole estate

Characteristics:
• Freely transferable—each interest is freely descendible, devisable, and alienable
» Co-tenant interests can be transferred upon death
» Rent—a co-tenant can lease his individual interest, which transfers his right of possession to lessee, but co-tenants have a right to share in rents from third-party lessee
• No survivorship rights—upon death of a co-tenant, her interest does not pass by law to remaining co-tenants
• Partition—a co-tenant may seek judicial partition (i.e., division of property); if not feasible, property may be sold and proceeds apportioned among co-tenants
• Modern law favors tenancy in common; it is the default concurrent estate

Question 4

Rights and Duties of Co-tenants

Answer 4

The following rules generally apply to concurrent estate tenants:

1) Possession—each co-tenant has rights to possess the whole.
» No ouster (wrongful exclusion from part/whole).

2) Rent and profits—a tenant is not required to pay rent or reimburse co-tenants for tenant’s use of land.
» None from co-tenant in exclusive possession.
» But each co-tenant has a right to share in rents from third parties and profits derived from use of land that depletes its value (e.g., timber, oil and gas, mining, etc.)/ Fair share if leased to third-party.

3) Adverse possession—tenant may not acquire title to the exclusion of co-tenants through adverse possession UNLESS the co-tenants are ousted for the statutory period.

4) Carrying costs—each tenant is responsible for his fair share of taxes, interest, etc.

5) Repairs—tenant may seek contribution from co-tenants for reasonable repairs, but must inform co-tenants before making repairs/must give notice.

6) Improvements—no right to contribution from co-tenants for unilateral improvements; but tenant is entitled to credit for an increase in value attributable to the improvement (and also liable for any resulting loss).

7) Waste—tenant can bring an action for waste against co-tenants during the life of the tenancy.
» Voluntary: willful destruction.
» Permissive: neglect.
» Ameliorative: unilateral change increasing value.

8) Partition/sale—co-tenants may seek judicial partition; if property cannot be divided, permitted to sell and apportion the proceeds.