Flashcards in Concurrent Estates Deck (21):
What is the basic rule in regards to concurrent owners occupying the land?
What's the exception?
Concurrent owners each have a right to use/possess the whole property.
Exception: concurrent owners can contract out of the basic rule
What are the three kinds of concurrent ownership/concurrent estate?
Tenancy in common
Tenancy by entirety
What is the default concurrent interest?
Tenancy in common
What Rights does a TIC?
• concurrent owners have separate but undivided interest in the property.
• no right of survivorship
How do you create a joint tenancy?
• grantor must make a clear expression of intent, plus
• must have survivorship language
What are the four unities of a joint tenancy?
•Time- joint tenants must receive their interest at the same time.
•Title- . Tenants must receive their interest in the same type of title.
•Interest- joint tenants must have an equal share of the same type of interest.
•Possession- requires every joint tenant have an equal right to possess the whole of the property
How is a joint tenancy severed?
If any of the unities are severed (destroyed), then the joint tenancy is terminated and it turns into a TIC
What are the three common situation to severe the joint tenancy?
• Inter vivos transfer: transferred during life will destroy the right of survivorship and convert the estate into a TIC
• mortgages: A joint tenancy grants the mortgage interest in a joint Tenancy to a creditor.
• Lease: A joint tenant leases her share of the property to a tenant. (Split)
What is the lien theory?
Majority view- The mortgage is treated as a lien is not destroy the joint tenancy.
What is the title theory?
Minority view – The mortgage severs title and the Tenancy between the joint tenants in creditor is converted into a tenancy in common.
What is a tenancy by the entirety?
Joint Tenancy between married spouses.
How is a tenancy by the entirety created?
Same Utilities as a JT plus marriage.
Cannot alienate or encumber this year without the consent of their spouse.
What are co-tenants rights to receive rent?
Rent received from a third-party's possession of the property, minus operating expenses, Are divided based on ownership interest of each cotenant.
How are operating expenses divided among co-tenants?
• divided based on ownership interest of each Co-tenant
• A co-tenant can collect contributions from the other co-tenant for payments in excess of her share of operating expenses.
How are repairs reimbursement divided amongst cotenants?
•There is no rights to reimbursements from cotenants for necessary repairs.
• however, the cotenant who makes the repairs can get credit in a partition action.
How are improvements reimbursed Amongst cotenants?
•There is no right to reimbursements for improvements.
•However, the cotenant who makes improvements can get credit in a partition action.
What is a partition cause of action?
And equitable remedy available to all holders of a TIC or a JT.
What are the effects of a partition action?
The court will divide the property into distinct portions.
What is partition in kind?
A physical division of property. (Courts preference).
When will Court's order a partition by sale?
1. If the physical partition is not practical
2. Not fair to all parties.