Flashcards in Concurrent Estates in Land Deck (25)
What is a concurrent estate?
an estate in land that can be held concurrently by several persons, all of whom have the right to enjoyment and possession of the land
What are the different types of concurrent estates?
Joint Tenancy, Tenancy in Common, and Tenancy by the Entirety
What is the distinguishing features of a Joint Tenancy?
Right of Survivorship
What does "right of survivorship" mean?
When one of the joint tenant dies, the surviving joint tenant(s) take equal possession of that join tenant's interest (her survivors do not succeed to it)
How is a Joint Tenancy created?
Common law requires four unities: time, title, interest, and possession; the interests must be equal in every way, the interests must be taken at the same time, by the same instrument, and with the same right to possession (equal shares)
If there are three joint tenants, what are their shares?
Each has 1/3 interest
A conveyance to two or more persons is presumed to be a tenancy in common unless:
there is a clear expression of a right of survivorship - then it will be a joint tenancy
Is a joint tenant's interest transferable?
It is alienable, but not devisable or descendible
How can a ROS be severed (terminated) in a Joint Tenancy?
If a ROS is severed, the estate converts into a Tenancy in Common. Severance occurs by: (1) conveyance of one JT; (2) agreement of JTs; (3) murder of co-T by another; or (4) simultaneous deaths of co-Ts. A JT can also be terminated by partition (voluntary or involuntary).
What happens if a joint tenant conveys her undivided interest (voluntarily or involuntarily)?
This destroys the joint tenancy with respect to the transferee. The transferee takes it as a tenant in common. If there are two or more remaining joint tenants, they keep their joint tenancy intact.
What is a Tenancy by the Entirety?
a marital estate akin to a joint tenancy (we presume TE if estate between spouses)
In a Tenancy by the Entirety, do the spouses have equal interests and ROS?
Yes, undivided and ROS.
How is a Tenancy by the Entirety terminated?
The TE ROS is terminated by (1) death; (2) divorce; (3) mutual agreement; or (4) execution by joint creditor. NOTE: tenancy by entirety cannot be terminated by involuntary partition.
Can an individual spouse convey or encumber the tenancy by the entirety?
No. A deed or mortgage executed by one spouse is ineffective.
What is a Tenancy in Common?
a concurrent estate with NO ROS wherein each tenant has a distinct, proportionate, undivided interest in the property.
What kind of unity is required for a Tenancy in Common?
only unity in possession
How do you terminate a Tenancy in Common?
Can tenants in common transfer their interests?
yes, interests are alienable, devisable, and inheritable. But note that each tenant can hold a different interest in the property.
What are the rights of co-tenants with respect to possession?
each co-T has right to possess all portions of the property, but no right to exclusive possession of any part. A co-T out of possession cannot bring a possessory action unless she is "ousted" (another co-T claims right to exclusive possession)
What are the rights of co-tenants with respect to rents and profits?
co-T in possession has right to retain profits from her own use of the property (does not need to share the profits with the others absent ouster or agreement to contrary). But she has to share net rents from third parties and net profits gained from exploitations of land (mining)
Can a joint tenant or tenant in common encumber their interest? (by mortgage or judg. lien)
Yes, but cannot encumber the interests of the co-Ts. If one tenant in common mortgages her interest, mortgagee can foreclose only on that interest. If a joint tenancy is involved, a mortgage or lien does not sever the JT, but foreclosure sale will.
What is a remedy by partition?
any co-T has right to judicial partition (in kind = physical division of land or by sale and division of proceeds). Courts prefer in kind.
Is a co-tenant entitled to contribution from other co-tenants when she pays more than her pro rata share for necessary repairs?
Yes, provided she notified the others of the need for repairs.
Is there a right of contribution for improvements?
No, unless there is a partition. Co-T cannot compel contribution for improvements from out-of-possession co-Ts. But if T in possession has been collecting rent, they may deduct cost from rent they are required to pay other co-Ts.