Concurrent Estates Flashcards
Concurrent Estates
(1) Joint Tenancy : 2/more own w/ the right of survivorship
(2) Tenancy by the Entirety : A protected marital interest between spouses w/ ROS
(3) Tenancy in Common: 2/more own w/out right of survivorship
Joint Tenancy: Distinguishing Characteristics
(1) Right of Survivorship: A joint tenancy’s distinguishing feature is the right of survivorship.
(2) Alienability: A JT’s interest is alienable inter vivos.
(3) Not Descendible or Devisable: A JT’s interest is neither devisable/descendible.
- Since a deceased JT’s property passes to the surviving JT(s), there isn’t any property interest remaining that a decedent’s beneficiary may inherit.
- So, JT property doesn’t become part of the deceased JT’s estate, and an executor/administrator has no interest in the property.
- This survivorship characteristic also means a JT’s attempt to dispose of the property by will is void.
How to Create a Joint Tenancy
The Four Unities
- CL requires 4 unities (“T-TIP”): Joint tenants must take their interests:
* T: at same time;
* T: by same title (in same deed, will, or other doc of title);
* I: w/ identical, equal interests; and
* P: w/ rights to possess the whole
- In other words, the interests of JTs must be equal in every way. They must take identical interests, at the same time, by the same instrument, with the same right to possession. Thus, all interests in a JT must be equal shares. If there are 3 JTs, they each own an undivided 1/3 interest.
- Compare: In a TIC, by contrast, equal shares are presumed, but are not required. For example, in a TIC held by 3 parties, one tenant may own a 2/3 undivided interest while each of the other 2 tenants holds an undivided 1/6 share.
How to Create a Joint Tenancy: Clear Expression of Right of Survivorship
- In addition to the four unities, to create a JT, grantor must clearly express ROS.
- Ex: “To A and B as JTs with the right of survivorship.”
- Otherwise, a conveyance to 2/more persons, w/o more, is presumed to be TIC.
Tip
By contrast, if in a question the bar examiners identify the parties as JTs, take it as given that they are JTs with the ROS. In this situation, do not apply the presumption that any conveyance to 2/more persons is a TIC. The bar examiners are not testing your knowledge of that unless the fact pattern gives you the quoted language of the grant creating the concurrent estate and then specifically asks you which concurrent estate has been created by that language.
Severance of a Joint Tenancy: Severance & Sale
HIGH
- Under certain circumstances, a JT will be severed and a TIC results.
- Remember SAP for these circumstances: Sale And Partition.
Severance and Sale
- A JT may sell/transfer her interest during her lifetime.
- A voluntary conveyance by a JT of their interest destroys the JT.
- The transferee takes as a TIC.
- One JT’s sale severs JT as to seller’s interest.
- Thus, buyer is: If we started with >2 JTs in the first place, remember, the JT remains intact as between the other, non-transferring JTs.
Severance of a Joint Tenancy: Severance & Partition
There are 3 types of partition:
(1) By voluntary agreement: An allowable and peaceful way to end the relationship.
(2) By judicial action called partition in kind: An action for a physical division of the property, if in the best interests of all parties.
(3) By judicial action called a forced sale: An action when, in the best interests of all parties, the land is sold and the sale proceeds are divided up proportionately.
Severance of a Joint Tenancy: Transactions that Will Not Result in Severance
Mortgages
- In most states, a mortgage is a lien on title and does
not sever a JT.
- Severance occurs only if the mortgage is foreclosed & property is sold.
- The execution of a mortgage in title theory states, does sever a JT (b/c giving a creditor a lien on one’s share is the equivalent of transferring title to that creditor - Min View).
Effect of One Joint Tenant’s Murdering Another
- Under the Uniform Probate Code and modern statutes, when a beneficiary unlawfully & intentionally kills a JT, any joint property is transformed into a TIC.
Severance of a Joint Tenancy: Testamentary Disposition Has No Effect
A will is ineffective to work a severance
TENANCY BY THE ENTIRETY
A TBE is a marital estate similar to a JT.
- It can be created only between married partners, who take as a fictitious “one person” with the ROS.
TENANCY BY THE ENTIRETY: How Created
Arises presumptively in any conveyance to married partners unless language of the grant clearly indicates otherwise
TENANCY BY THE ENTIRETY: Very Protected Form of Co-Ownership
- The tenancy by the entirety is a very protected form of co-ownership.
Creditors
- Creditors of only one spouse cannot touch this tenancy for satisfaction of debt.
Unilateral Conveyance or Encumbrance
- One spouse, acting alone, cannot defeat the ROS by unilaterally conveying to 3rd party.
- An individual spouse also cannot encumber the TBE property & a deed/mortgage executed by only 1 spouse is ineffective
Severance
Only death, divorce, mutual agreement, or execution by a joint creditor of both the spouses can sever a TBE. On divorce, the TBE becomes a TIC.
TENANCY IN COMMON
- TIC is a concurrent estate with no ROS.
- Multiple grantees are presumed to take as TIC, not as JTs.
- Remember these 2 features of tenancy in common:
(1) Each co-tenant owns an individual part, & each has a right to possess the whole
(2) Each interest is devisable, descendible, & alienable
Rights and Duties of Co-Tenants: Possession
- Each co-tenant has the right to possess all portions of the property but has no right to exclusive possession of any part.
- If one co-tenant wrongfully excludes another co-tenant from possession of the whole/any part, they’ve committed ouster.
- Ouster is an actionable wrong.
