Concurrent Ownership Flashcards
(7 cards)
3 types of concurrent estates
Joint Tenancy: Includes the right of survivorship—when one tenant dies, their share automatically passes to the surviving joint tenants.
Tenancy by the Entirety: A marital estate between spouses with a right of survivorship and strong protection—neither spouse can unilaterally convey or encumber the property.
Tenancy in Common: The default form of concurrent ownership. No right of survivorship—each tenant’s interest is freely devisable and transferable.
Joint tenancy
Joint Tenancy (JT): Includes the right of survivorship—when one JT dies, their share automatically passes to the surviving JT(s). A JT’s interest is alienable inter vivos (transferable during life), but not devisable or descendible (can’t pass by will or intestacy).
To create a JT, four unities must be met:
(1) same time,
(2) same title,
(3) identical equal interests, and
(4) right to possess the whole.
There must also be a clear expression of the right of survivorship.
Certain acts by one joint tenant will sever a joint tenancy (e.g., suit for partition, inter vivos conveyance by one joint tenant, execution of a mortgage by one joint tenant in a title theory state)
Severance of Joint Tenancy
Severance of Joint Tenancy: A joint tenancy is severed if a JT sells or transfers their interest during life—this converts that share into a tenancy in common. If there are more than two original JTs, the remaining JTs retain their joint tenancy with each other.
Partition also severs a JT.
Voluntary partition ends the JT by mutual agreement.
Judicial partition can result in:
(1) Partition in kind (physical division of land, preferred if fair and practical), or
(2) Forced sale (land sold, proceeds divided).
Mortgages do not always sever a JT.
Under the lien theory (majority), a mortgage is just a lien and does not sever the JT.
Under the title theory (minority), a mortgage does sever the JT.
Tenancy By Entirety
A marital estate that includes the right of survivorship and offers strong legal protection. In states that recognize it, it arises automatically in any conveyance to married partners unless the deed says otherwise.
This form of ownership is impervious to the creditors of one spouse, and one spouse cannot unilaterally convey or encumber the property—it requires both spouses’ consent.
Severed by: death, divorce, mutual agreement, execution of lien by both parties.
Divorce turns a tenancy by entirety to a tenancy in common
Tenancy in common
No right to survivorship between tenants in common. cotenant owns individual part and right to possess whole. each interest is advisable, descendible, and alienable.
Rights and Duties of Co-Tenants
Rights and Duties of Co-Tenants: Each co-tenant has the right to possess the entire property. No ouster is allowed—one co-tenant may not wrongfully exclude another from any part of the property.
Rents and Profits: A co-tenant in exclusive possession is not liable for rent to others unless there’s an ouster. However, a co-tenant who leases the property to a third party must account to the others and share the rental income.
Adverse Possession: A co-tenant cannot claim adverse possession against another co-tenant unless there is a clear ouster.
Carrying Costs: Each co-tenant must pay their fair share of property taxes, mortgage interest, and related charges.
Repairs: A co-tenant who makes reasonable and necessary repairs is entitled to contribution, as long as notice was given to the others.
Improvements: There is no right to contribution for improvements during the life of the co-tenancy, but the improving co-tenant may receive a credit or debit at partition for the change in value caused by the improvement.
Waste: A co-tenant cannot commit waste and is liable to the others for:
- Voluntary waste (intentional damage),
- Permissive waste (neglect), and
- Ameliorative waste (unauthorized changes that improve value).
Partition - JT or tenant in common always can bring action for partition.
