Concurrent Estates Flashcards
Three Forms of Concurrent Ownership
Joint Tenancy
Tenancy in Common
Tenancy by the Entirety
How is a Joint Tenancy Created?
Must be created at (1) the same time, (2) by the same title, (3) of identical, equal interests, (4) with rights to possess the whole
Must also be a clear expression of the right to survivorship: “To A and B with a right of survivorship”
Is a Joint Tenancy Transferrable?
Interest is alienable inter vivos, but not descendible or devisable.
However, if a joint tenant transfers her share during her lifetime, the transferee takes as a tenant in common
How to Sever a Joint Tenancy?
Sale
Partition
Three Types of Partition
Voluntary agreement: amicable end to the JT relationship
Judicial Action:
Partition in kind (physical division). Look for sprawling acreage (like a farm)
Forced sale (w/ division of proceeds) Look for a single building
Severance by Sale
If the JT transfers their share during their lifetime, it becomes severed from the Joint Tenancy and the transferee holds it as a Tenant in Common.
Effect of a Mortgage on a Joint Tenant’s share
Majority of States: Lien theory
- No severance if JT takes out a mortgage on their share, unless the mortgage is foreclosed and the property is sold
- However, if another JT did not sign the mortgage, they would not be subject to it, regardless of whether they knew about it
Minority of states: Title theory (severance of JT)
What is a Tenancy by the Entirety?
A protected marital interest between spouses with the right of survivorship. It is presumptively created in any conveyance to married partners unless the grant says otherwise.
Characteristics of a Tenancy by the Entirety
Creditors of one spouse cannot touch this tenancy to satisfy a debt
Unilateral transfer by one spouse to a third party is unenforceable (the spouse cannot do this)
A deed or mortgage executed by one spouse in ineffective.
How to sever a Tenancy by the Entirety
Death
Divorce (becomes a TIC)
Mutual Agreement
Execution by a joint creditor of both spouses.
Features of a Tenancy in Common
No right of survivorship
Co-tenant owns individual part + right to possess whole
Devisable, descendible, alienable
Who is entitled to rents from a TIC?
If a co-tenant is in exclusive possession, they have the right to retain profits from their use of the property UNLESS there was an ouster or agreement to the contrary. A co-tenant that voluntarily leaves cannot come back and ask for rent.
Must share net profits gained from exploitations of the land, such as mining.
If leased to a third party (whole or part), each TIC gets fair share
Can one TIC acquire another TIC’s share by adverse possession?
No (unless ouster)
TIC co-tenant committing Waste
During the life of the co-tenancy, a co-tenant is permitted to bring an action for waste against another co-tenant.
3 types of waste:
* Voluntary waste is willful destruction
* Permissive waste is neglect
* Ameliorative waste is unilateral change that increases value
Ability to Partition a TIC
Can be partitioned (like a JT)
Restraints on partition by co-tenants are valid, provided they are limited to a reasonable time.
Three types of partition:
- Voluntary agreement
- Partition in kind
- Forced sale
