Concurrent Interests Flashcards
3 Types of Concurrent Interests
- Tenants in Common
- Joint Tenancy
- Tenancy by Entirety
Tenants in Common
Each co-owner has a separate, but undivided interest in the land. This is the default form of concurrent interests.
Tenants in Common CAN:
- sell their shares to other cotenants or to outsiders.
- petition the court for partition of the co-owned parcel.
- contract among themselves to allocate the various benefits and burdens of ownership.
Tenants in Common CANNOT:
have rights of survivorship
Partition
If co-owners can’t agree on how to end their co-tenancy, tenants in common and joint tenants have the right to petition a court for partition – a judicially supervised mechanism for ending co-ownership.
Partition in Kind
dividing land into pieces and giving each cotenant a piece that reflects their share.
- the preferred method of partition because it leaves cotenants holding the same estates as before and does not force a sale on unwilling cotenants.
Partition in Sale
sell the whole property and divide proceeds to the owners
Partition in Sale Requires:
(1) that the property cannot be conveniently partitioned in kind,
(2) that the interests of one or more of the parties will be promoted by the sale,
(3) that the interests of the other parties will not be prejudiced by the sale.
Joint Tenancy
Joint tenants have equal, separate but undivided interests. The rights of obligation of joint tenants are the same as those of tenants in common. BUT there is right of survivorship.
Concurrent Interests Default:
Tenants in common is our default unless the grantor specifically gives the land to them as “joint tenants” with unambiguous language.
The Four Unities of Joint Tenancy
TTIP
(1) time – the joint tenants’ interests were all acquired at the same time;
(2) title – the interests were all acquired by the same document or by joint adverse possession;
(3) interest – the tenants’ shares must all be equal and undivided; and
(4) possession – all joint tenants must have equal rights to possess the whole (in the absence of an agreement to the contrary).
Severance
any act that destroys one or more of the four unities required to maintain a joint tenancy.
What happens to Joint Tenancy when severed?
The legal consequence of severance is that the joint tenancy is converted to a tenancy in common.
Separate
each has a share that belongs to them, and they can sell it if they want without the consent of others.
Undivided
each tenant is entitled to all the rights of ownership in the entire co-owned parcel.
Can go anywhere they want on the land, regardless of the distribution percentage.
Ouster
denying the other cotenants equal access, there must be an attempt to request access to the property and a denial.
Simply requesting the cotenant to vacate is not sufficient because the occupying cotenant holds title to the whole and may rightfully occupy the whole unless the other cotenants assert their possessory rights.
TIC Leasing
In all states, a cotenant who collects rents from a third party must account to the other co-owners for the amounts received, net of expenses.
TIC Taxes
Failure to pay the taxes and mortgage substantially increases the risk that the asset will be lost to all cotenants, so every concurrent owner has an obligation to pay her share.
TIC Repairs
The majority rule is that cotenants need not share in the costs of repairs in the absence of an agreement to do so.
Fixers aren’t completely out of luck. In a partition action, cotenants who pay for repairs will get reimbursed for the cost of necessary and reasonable maintenance.
TIC Improvement
Any cotenant has the right to make improvements to the property, but other cotenants are not required to contribute. During a partition action, the improver is awarded the value added to the property (if any) because of the improvements.
TIC Damages
If one cotenant damages the property or harms its value, other cotenants may have claims for waste.
Disputes over JT arise under two issues:
Formation
Severance
Tenancy by Entirety
concurrent ownership that can only exist between married persons.
Neither spouse acting alone can unilaterally affect the rights of the other.
Neither spouse was considered to own any individual interest in the estate; rather, it belonged to the couple.
TbE Traits?
- Survivorship
- TTIP
- cannot be severed unilaterally.
robust protection from creditors.
- Because neither spouse has a separate interest in property held by the entirety, no lien can attach to the property for the separate debts of either spouse.
- There is only one creditor who can reach the interest of a debtor spouse in tenancy by the entirety property – the IRS.
