Concurrent Estates

Question 1

Joint Tenancy

Answer 1

• Right of survivorship
• Alienable inter vivos: Transferable during lifetime
• Not devisable or decendible (Devisable = Pass by Will) (Descendible = Pass by statutes intestacy)
• Unless clearly stated, the presumption favors the tenancy in common

Creation (4 Unities):
* At the same Time
* By the same Title
* Identical equal Interests
* Right to Possess whole
* Also must be clear expression of right of survivorship

Sale (Severance):
* JT sells/transfers during lifetime
* Buyer become tenant in common, other tenants remain joint tenants
* If only one other joint tenant, buyer and them become tenants in common)

Partition (Severance; 3 types):
* Voluntary = Amicable end
* Judicial: Partition in Kind = Physical division (standard: best interests of all parties)
* Judicial: Force Sale = Division of proceeds (standard: best interest of all parties)

Mortgages (Transactions that won’t result in severance)
* Lien Theory = No Severance (majority view)
* Title Thoery = Severance (minority view)

Question 2

Tenancy by the Entirety

Answer 2

• Marital Estate
• Right of Survivorship
• Creation = Any conveyance to married partners unless otherwise stated

Impervious to (“Can’t touch this”):
* Creditors of only one spouse
* Unilateral conveyance

Severance:
* Death
* Divorce = tenancy in common
* Mutual agreement
* Execution of lien by both parties

Question 3

Tenancy in Common

Answer 3

• No right of survivorship
• Co-tenant owns individual part & right to possess whole
• Each interest is devisable, descendible, alienable

Question 4

Rights & Duties of Co-Tenants

Answer 4

Possession:
* Each co-tenant has right to the whole
* No ouster: Wrongful exclusion from whole/part

Rents & Profits:
* Co-tenant in exlusive possession = Not liable for rent (In most states, a co-tenant in exclusive possession has the right to retain profits from their use of the property; that is, they don’t need to share profits with other co-tenants absent ouster or an agreement to the contrary)
* Co-tenant who lease to a third party = Must account to co-tenant (share profits based on % of ownership)

Adverse Possession:
* Unless they’ve ousted the other co-tenant, the co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the whole to the exclusion of the other co-tenant.
* Why not? The hostility element of adverse possession is absent. There is no hostility because there was never any ouster.

Carrying Costs:
* Taxes, mortgages interest payments (each pay for share based on % of ownership)

Repairs:
* Repairing co-tenant = Right to contribution for reasonable necessary reapirs with notice (each pay for share based on % of ownership)

Improvements:
* No affirmative right to contribution for improvements made during the life of the co-tenancy
* Credit at partition (equal to any increae in value their effort caused) (also may get deduction if their actions caused a loss in value)

Waste (3 types): A tentant must not commit waste
* Voluntary waste = Willful destruction
* Permissive waste = Neglect
* Ameliorative waste = Change without permission; Increases value

Partition:
* Joint Tenant or Tenant in Common has right to partition