Co-Ownership

Question 1

What are the three modern concurrent estates?

Answer 1

Tenancy in common
Joint Tenancy
Tenancy by entirety

Question 2

True or false: There are no survivorship rights associated with a tenancy in common

Answer 2

True! The interest of each is descendible and may be conveyed by deed or will.

Question 3

True or false: With tenancy in common, there is not unity of possession

Answer 3

False, Each tenant owns an undivided share of the whole, giving them equal use and enjoyment of the estate

Question 4

Define Right of Survivorship

Answer 4

When one Joint Tenant dies, their interest disappears and their % of the interest increases to survivors. Interest cannot pass to heirs upon death.

Question 5

What are the Four Unities required for joint tenancy?

Answer 5

PITT
Possession = Right to possession of the whole
Interest = Undivided equal shares and identical interests measured by duration
Time = interest must be acquired or vest at the same time
Title = All tenants must acquire title by the same instrument or by joint adverse possession

Question 6

True or false: If one of the four unities required for joint tenancy is violated after the creation, it still remains a joint tenancy

Answer 6

False. The four unities must exist at creation and for duration. If one of the unities is violated, there is a severance and likely it’s turned into a tenancy in common.

Question 7

True or false: Tenancy in entirety requires a marriage license

Answer 7

True. Four unities plus a legal marriage certificate.

Question 8

True or false: Divorce does not terminate a tenancy in entirety

Answer 8

False. Marriage is a requirement for entirety.

Question 9

True or false: With married couples that co-own property, courts assume that this is a tenancy in entirety unless expressly stated otherwise

Answer 9

True

Question 10

True or false: A grant or devise to two or more persons creates a tenancy in common unless an intent to create joint tenancy is expressly declared

Answer 10

True, in modern courts this is the assumption. VERY explicit language must be used. Ex: “To A and B as joint tenants and not tenants in common”

Question 11

H: T devises Blackacre “To A and B as joint tenants for their joint lives, remainder to the survivor.” What interests are created in the devise?

Answer 11

Joint tenancy because right of survivorship is articulated, as is the phrase “joint tenancy”. If it was a tenancy in common, ROS would not come into play.

The survivor would have the estate in fee simple absolute

Question 12

H: O, a widower, opens a joint account with his niece, A. O tells A, “I’ll want your name on this account so that I get sick you can go and get the money for me.” O dies. Is A entitled to the money in the bank account?

Answer 12

Franklin v. Anna National Bank: If a person executes an instrument creating a joint tenancy, but does not intend to make a gift to the joint tenant, a joint tenancy with right of survivorship is not created.

Question 13

H: O, a widower, opens a joint account with his niece, A. O tells A, “I’ll want your name on this account so that I get sick you can go and get the money for me.” O also gave A rights of access to O’s safety deposit box by adding A’s name to the signature card giving access and the lease agreement signed with the bank provides that the contents in the box are owned in joint tenancy with rights of survivorship. O dies. Is A entitled to the contents? Is A entitled to the money in the bank account?

Answer 13

No, according to Newton County v. Davidson: “language of the lease and Mr. Davison’s testimony insufficient to establish ownership of the contents of the lock box, we announce our intention to require an affirmative showing that the owner of a lock box intended to give the contents of the lock box to another. Such an intention cannot be demonstrated without a specific written reference to the disposition of the contents of a lock box and is not indicated by an agreement only to rent the box in two or more names with a right of survivorship.”

Question 14

H: A and B have a joint savings account of $40,000. How much of the account can A’s creditor reach?

Answer 14

Maloy v Stuttgart: “The joint account should be garnishable only in proportion to the debtor’s ownership of the funds, as to which parol evidence is admissible to show the respective contributions of each depositor, as well as any intent of one to make a gift to the other.”

Question 15

Why are JT’s popular with married couples/domestic partners?

Answer 15

JT is the practical equivalent of a will BUT probate upon death is avoided b/c no interest passes on the joint tenant’s death and ownership of the survivor continues

If a creditor acts during a joint tenant’s life, the creditor can seize and sell the joint tenant’s interest in property and severing the joint tenancy

If the creditor waits until after the joint tenant’s death, the decedent joint tenant’s interest has disappeared… can’t get anything

Question 16

How is a JT severed?

Answer 16

Partition (In Kind, Sale)
Transfer (equitable conversion)
Title Theory (mortgage severs a JT) v Lein Theory (Mortgage does not sever JT)
When severed, it is a TIC
However, if two or more co tenants remain, the JT stays intact with the new grantee taking over the severing party’s share (as a tenant in common)

Question 17

How do tenancies in entirety shield the concurrent owners from creditors?

Answer 17

Shield against creditors: creditor of an individual spouse cannot reach tenancy by entirety property

Some states allow for creditors to execute on the ROS of the debtor spouse only, other states allow creditors to sell the debtor spouse’s interest subject to the non-debtor spouse’s ROS

Question 18

Can a joint tenant, without the consent of his cotenant, convey or burden his share of the property?

Answer 18

A joint tenant may, without the consent of his cotenant, convey or burden his share of the property only to the extent of his interest in the property

Question 19

When would a cotenant in exclusive possession of property be liable for rent?

Answer 19

A cotenant in exclusive possession of property is not liable for rent UNLESS, the exclusive possessor denies other cotenant(s) access. The possibility of an ouster exists and AP clock begins ticking.

Question 20

What is an accounting action and when does it come into play with cotenants?

Answer 20

Accounting Action = Equitable processing in which a cotenant seeks to obtain his share of the rents or profits generated by the property

Right to Rent and Profits: Share equivalent to share of property. Pro rata share of rent received from third person’s use of land.

Question 21

What is a contribution proceeding and when does it come into play with cotenants?

Answer 21

Contribution Proceeding = a cotenant who pays more than his share of taxes, mortgage payments, and other charges seeks contribution from the other cotenants

Liability for Costs: Taxes or mortgages equivalent to share of the property. For the cotenant in sole possession of the property, they cannot recover for these payments unless they exceed the reasonable rental value of the property.

Question 22

What is a partition? Which type do courts tend to prefer?

Answer 22

Partition: Equitable action to divide property between tenants in common, either by division of the land itself (partition in kind) or by a forced sale of the land and dividing profits by proportion owned (partition in sale)

Courts tend to prefer partition by division of the land. A partition by sale should be ordered only where a partition in kind is impracticable or inequitable, and when the interests of the parties would be better suited by sale.

Question 23

Does refusing a cotenant’s demand for rent or to vacate half of a property constitute an ouster?

Answer 23

A cotenant in common, having an undivided right to the entire property, does not owe rent to his cotenant unless he agrees to, or unless he has effected the ouster of his cotenant.

Question 24

What is privity of contract?

Answer 24

common law principle which provides that a contract cannot confer rights or impose obligations upon any person who is not a party to the contract. The premise is that only parties to contracts should be able to sue to enforce their rights or claim damages as such.

Question 25

What is privity of estate?

Answer 25

mutual or successive relation to the same right in property, such as the relationship between a landlord and tenant. Thus, privity of estate refers to the legal relationship that two parties bear when their estates constitute one estate in law

Question 26

True or false: When a JT is severed by one of the parties, it’s always transformed into a TIC

Answer 26

Half true, half false:
If a JT is between only two parties, it becomes a TIC

If two or more co tenants remain, the JT stays intact with the new grantee taking over the severing party’s share (as a tenant in common)

Question 27

If on a joint tenancy property, one of the parties builds a house with their own money. Is this considered an improvement?

Answer 27

YES and if there was a partition of sale, the building party would get a greater % of the proceeds. If this was a partition in kind, the building party would get a greater % of the land.

Keep in mind, certain “improvements” diminish the value of the land. Ex: Climbing wall in a third floor of a residential property. Because the remediation from the next buyer would cost money, it lessens the value

Question 28

What are the differences between lein theory and title theory when looking at joint tenancies?

Answer 28

Title Theory (mortgage severs a JT) 
Lein Theory (Mortgage does not sever JT)

Question 29

True or false: Tenancy in common only has one unity.

Answer 29

True! Possession is the only one unity that characterizes a TIC

Question 30

True or false: Lein theory of mortgages and JT’s also extends to leases under a JT

Answer 30

True! Harms v. Sprague extended the Lien Theory to leases

Question 31

O conveys Blackacre to A and B as joint tenants with right of survivorship. Subsequently, A conveys his interest to C. Who owns Blackacre and what is the state of title?

Answer 31

B owns one-half and C owns one-half as tenants in common.

The transfer by A severs the unities of time and title. Therefore, the joint tenancy is severed and B and C are now tenants in common, each owning 1/2 interest.

Question 32

O conveys Blackacre to A, B and C as joint tenants with right of survivorship. Subsequently, A conveys his interest to D. Who owns Blackacre and what is the state of title?

Answer 32

D owns one-third as a tenant in common, and B and C together owns two-thirds as joint tenants with right of survivorship.
The transfer by A severs the unities of time and title as between A and B and also A and C. However, B and C still got their title at the same time through the conveyance from O. As between the two of them, the unities of time and title have not been broken. So, as between B and C, they are still joint tenants with a right of survivorship with respect to their 1/3 and 1/3 shares. But w/r/t D, B and C and tenants in common. So, D owns 1/3 as TIC. B and C each own 1/3 as JT w/r/t each other.

Question 33

O conveys Blackacre to A, B and C as joint tenants with right of survivorship. Subsequently, A conveys his interest to D. Then B dies intestate, leaving H as his only heir. Who owns Blackacre and what is the state of title?

Answer 33

D owns one-third and C owns two-thirds as tenants in common.

The transfer by A to D severs the JT w/r/t A only. B and C are still JT with a right of survivorship. When B dies, the right of survivorship kicks in automatically (this is the special feature of the JT) and C gets B’s 1/3 share automatically. H gets nothing because the right of survivorship supersedes both wills and intestacy statutes. So, D owns 1/3 and C owns 2/3 and D and C are tenants in common.

Question 34

T devises Blackacre “to A and B for their joint lives, remainder to the survivor.” T has not created a joint tenancy. How does what T has created differ from a joint tenancy?

Answer 34

Unlike joint tenants, neither A nor B can destroy the “right of survivorship” by conveying to a third party.

A and B are holders of a joint life estate, with a contingent remainder in the survivor. There is nothing and A or B can do to alter the terms of the property interests created by T, which includes the contingent remainder (by the terms of T’s will, it will go to the survivor.) This is not technically a right of survivorship, which can be destroyed by a transfer.

Question 35

H and W own Blackacre as joint tenants with right of survivorship. H conveys his interest to himself. What is the state of title?

Answer 35

H owns one-half and W owns one-half as tenants in common.

Yes! This is exactly like Riddle v. Harmon. The unilateral conveyance severs the JT and H & W are now tenants in common, each owning an undivided half share, but without the right of survivorship. Unities of title and time severed by H’s unilateral conveyance.

Question 36

A and B own Blackacre as joint tenants with right of survivorship. A conveys a 10-year lease in Blackacre to C. After 5 years, A dies devising all of his property to D. What are B’s rights against C?

Answer 36

A’s lease to C did not sever the joint tenancy. B may terminate A’s lease to C.

B may terminate C’s lease at his will or he can choose to affirm the lease and ratify as to the remaining five years on the lease. D has nothing because B got all that A had by right of survivorship, automatically. If B chooses to terminate the lease, C may be entitled to some measure of expectation damages in some jurisdictions based on contract liability.

Question 37

A and B own Blackacre as tenants in common. A and B agree in writing never to bring an action to partition Blackacre. A subsequently brings an action to partition Blackacre. What is A’s best argument that the written agreement does not preclude her action to partition.

Answer 37

The agreement is an unreasonable restraint on alienation.