Concurrent Ownership (Property) Flashcards
What is the main problem with concurrent ownership?
Joint interests can become highly fractionated. Also, each co-tenant has a right to possess and use the whole property, which can become problematic.
What is partition in kind?
Physically divide the property among the former co-tenants. This is done by default. If the property can’t be conveniently partitioned, we’ll do a partition by sale.
What is partition by sale?
We just sell it all and then divide the money.
What is an ouster?
This is important bc once it happens, it starts the AP clock. This is about keeping someone out and being denied entry. If they have a dangerous dog on the property, it isn’t immediately an ouster.
How do you create a join tenancy with right of survivorship?
To A and B as joint tenants with right of survivorship
What are the 4 unities required for joint tenancy?
Time, title (acquire title by the same instrument), interest (equal interest), and possession (equal rights to enjoy and possess property).
How do you sever a joint tenancy?
Any joint tenant can sever this unilaterally by conveying their joint tenancy to another person. This creates a tenancy at common, which also destroys the right to survivorship.
If there are more than 2 joint tenants, one joint tenant severing only severs her relationship of joint tenancy with the others, but the others’ relationship of joint tenancy still exists.
What won’t sever a joint tenancy?
- Transferring to yourself won’t end a joint tenancy (perhaps use a straw person).
- A transfer of a lease won’t sever.
What is title theory and lien theory?
In a title theory, a mortgage transfers title. This would sever a joint tenancy.
In a lien theory, the mortgage just puts a lien on the property with a potential transfer upon foreclosure, but isn’t yet a transfer until then, so it shouldn’t sever a joint tenancy until a foreclosure.
Lenders seem to want the title theory.
What is tenancy by entirety?
concurrent interest between spouses and resembles a joint tenancy. Like joint tenancy, there’s a right of survivorship. Unlike joint tenancy, spouses cannot unilaterally convey their interests. one consequence is one creditor of one spouse may not be able to reach the property to satisfy their debt. Neither of us can hurt either one’s interest in the property.
How can tenancy by entirety end?
spouses can transfer property together (can’t do it individually), one spouse may die and the right of survivorship gives sole ownership to the surviving spouse, the spouses may obtain a divorce decree.
What are the different groups for attempted conveyances and debtor spouses? Which group does our class use?
- Group 1: basically the common law tenancy by the entireties, unaffected by the married women’s property acts. The possession and profits of the estate are subject to the husband’s exclusive dominion and control.
- Group 2: the interest of the debtor spouse in the estate may be sold or levied upon for his or her separate debts, subject to the other spouse’s contingent right of survivorship
- Group 3: An attempted conveyance by either spouse is wholly void, and the estate may not be subjected to the separate debts of one spouse only.
- Group 4: Contingent right of survivorship appertaining to either spouse is separately alienable by him and attachable by his creditors during the marriage.
What is a community property state and how is the property divided?
In a community property state, we’d divide up all the community property equally in a divorce. For us, it’s half and half.
What is a separate property state and how is the property divided?
- during the marriage, any separate property is kept separate
- in divorce, all property acquired during marriage is subject to equitable distribution, even if it was “separate”
- the elective share is 1/3
How is a tenancy in common different from a joint tenancy?
A joint tenancy has a right of survivorship.
