Flashcards in Concurrent estates Deck (27):
Forms of concurrent ownership
1. Joint tenancy
2. Tenancy by the entirety
3. Tenancy in common
1. Two or more
3. with the right of survivorship
Tenancy by the entirety
1. A marital interest
2. between married partners
3. with the right of survivorship
Tenancy in common
1. Two or more
3. with NO right of survivorship
Joint tenancy: distinguishing characteristics
1. The right of survivorship—when one joint tenant dies, his share goes automatically to the surviving joint tenants.
2. Joint tenant's interest is alienable, but not devisable or descendable.
Joint tenancy: creation
1. Four unities
2. Grantor must clearly express the right of survivorship.
Joint tenancy: four unities
Joint tenants must take their interests:
1. At the same time
2. By the same title
3. With identical shares
4. With rights to possess the whole.
Joint tenancy: use of a straw
When O wants to be a joint tenant with someone, O must use a straw to satisfy the four unities:
1. O conveys to Straw
2. Straw conveys to O and the other joint tenant as joint tenants with the right of survivorship.
Joint tenancy: severance
3. Mortgage (minority)
Joint tenancy: severance + sale
A joint tenant can sell or transfer her interest during her lifetime > severs the joint tenancy as to the seller's interest > buyer holds as a tenant in common.
* Can sell or transfer secretly, without joint tenant's knowledge or consent.
* In equity, a joint tenant's mere act of entering into a contract for sale of her share will sever the joint tenancy as to her interest because of the doctrine of equitable conversion.
Doctrine of equitable conversion
Equity regards as done that which ought to be done.
Joint tenancy: severance + partition
1. By voluntary agreement (peaceful end to relationship)
2. By partition in kind (court action for physical division of the property, if in the best interest of all parties)
3. By forced sale (court action to sell the land and equally divide the proceeds, if in the best interest of all parties)
Joint tenancy: severance + mortgage
Joint tenant's execution of a mortgage or lien on her share will sever the joint tenancy as to the now-encumbered share ONLY in the minority of states that follow the TITLE THEORY of mortgages.
*In states that follow the lien theory of mortgages, a joint tenant's execution of a mortgage on her interest will not sever the joint tenancy.
Tenancy by the entirety: creation
1. Between married partners with the right of survivorship.
2. Arises presumptively in any grant to married partners unless stated otherwise.
Tenancy by the entirety: protections
1. Creditors: creditors of only one spouse cannot touch this tenancy.
2. Unilateral conveyance: neither tenant, acting alone, can defeat the right of survivorship by a unilateral transfer to a 3d party.
Tenancy in common features
1. Each co-tenant owns an individual part, and has a right to possess the whole.
2. Each interest is devisable, descendable, and alienable. There are no survivorship rights.
3. The presumption favors the tenancy in common.
Rights of all concurrent tenants
2. Rent from 3d parties
3. Action for partition
Duties of all concurrent tenants
1. Carrying costs
2. Reasonable and necessary repairs
3. No waste
Rights of all concurrent tenants: possession
Each co-tenant is entitled to possess the whole.
* If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, there is wrongful ouster.
Rights of all concurrent tenants: rent from 3d parties
A co-tenant who leases all or part of the premises to a 3d party must account to his co-tenants, providing them their fair share of the rent income.
Rights of all concurrent tenants: action for partition
A joint tenant or tenant in common has a right to bring an action for partition.
Duties of all concurrent tenants: carrying costs
Each co-tenant is responsible for her fair share of carrying costs based on her undivided share.
* Carrying costs: taxes and mortgage interest payments, for example.
Duties of all concurrent tenants: reasonable and necessary repairs
A repairing co-tenant enjoys a right to contributions for:
1. reasonable and necessary repairs
2. IF she has told the others of the need.
* Cost of repairs are divided based on undivided share of property.
Duties of all concurrent tenants: waste
A co-tenant must not commit waste (either voluntary, permissive, or ameliorative).
Rent from co-tenant in exclusive possession
Absent ouster, a co-tenant in exclusive possession is NOT liable to the others for rent.
Adverse possession of concurrent tenants
Absent ouster, one co-tenant in exclusive possession for the statutory adverse possession period CANNOT acquire title to the exclusion of the others.
* Because there is no hostility (because there was no ouster).