Flashcards in MBE - Real Property Deck (116)
What are the three forms of concurrent ownership?
(1) Joint Tenancy
(2) Tenancy by the Entirety
(3) Tenancy in Common
What is a joint tenancy?
2 or more own with the right of survivorship.
When the JT dies, his share passes immediately to surviving JT.
JT's interest is alienable (can transfer while alive) but not devisable or descendible bc of right of survivorship.
What is a tenancy by the entirety?
Protected marital interest between married partners with right of survivorship.
What is a tenancy in common?
2 or more owners with no right of survivorship.
What are the distinguishing characteristics of a joint tenancy?
(1) Right of survivorship
(2) Joint tenant's interest is alienable, not devisable or descendible
What are the four unities?
Requirements for forming joint tenancy (T-TIP). Joint tenants must take same:
Instrument with Identical Interests
Right to Posess the whole
True or false? Joint tenancies are disfavored.
TRUE. Grantor must clearly express the right of survivorship.
What is the role of a strawman in the creation of a joint tenancy and what is the rule in NY?
On MBE, grantor must use a strawman to ensure both joint tenants obtain the conveyance with the same title and at the same time.
In NY, there is no need for strawman by statute.
Generally, what are the rules regarding the SEVERANCE of a joint tenancy?
Sale, Partition And Mortgage.
What does SPAM stand for/mean?
Sale, Partition and Mortgage = possible methods to sever a joint tenancy (mortgage = minority view and not NY)
JT can sell or transfer interest; use break up plan via partition; or in minority of states mortgage will sever joint tenancy - but not NY (that follows lien theory).
True or False: A joint tenant can not sell or transfer her interest secretly.
False. JT can transfer his interest secretly, even w/o the other's knowledge or consent.
When a Joint Tenant sells their interest in a joint tenancy, what result?
Buyer = tenant in common.
Joint tenancy remains entact if there are two or more remaining joint tenants.
What are the three variations of partition?
(1) By voluntary agreement
(2) Partition in kind
(3) Forced sale
What is a partition in kind?
Court action, if in best interests of all, that physically divides the property into equal parts.
Works best if blackacre --> sprawling acreage.
What is partition by forced sale?
Court action, if in best interest of all, where blackacre is sold and proceeds divided proportionately.
Works best if blackacre --> single building
What is the majority rule regarding the severance of joint tenancy and mortgages?
The majority of states follow "lien theory" whereby a joint tenant's execution of a mortgage on his interest WILL not sever the joint tenancy.
True or False: NY recognizes tenancy by the entirety.
Tenancy by the entirety is created between married partners with a right of survivorship.
How protected is the co-ownership in a tenancy by the entirety?
VERY - Can't touch this!
Creditors of only 1 spouse can't touch this tenancy.
In NY, one spouse may mortgage his interest and creditors may enforce against that interested, BUT ONLY as to the debtor spouse's share. The non-debtor spouse's rights must not be compromised.
What are the features of a tenancy in common?
(1) Each co-T owns an individual part AND a right to possess the whole.
(2) Each interest is devisable, descendible and alienable. There are no survivorship rights between tenants in common.
(3) The presumption favors tenancy in common.
If one co-T wrongfully excludes another co-T from possession, what result?
He has committed a wrongful ouster.
Each co-T is entitled to possess and enjoy the whole.
True or False. a Co-T in exclusive possession is liable to other co-T for rent.
However, if Co-T leases to 3P must account to co-T for their fair share of rent.
What is a co-T's responsibility for carrying costs?
Each co-T is responsible for their FAIR SHARE of carrying costs (taxes and mortgage interest) based on his undivided share.
Also, repairing co-T enjoys right to contribution for reasonable, necessary repairs, but must provided NOTIFICATION.
True or False: Co-T has right to contribution for "improvements."
What are the three species of waste?
(1) Voluntary - willful destruction
(2) Permissive - neglect
(3) Ameliorative - changes that increase value
"To A and his heirs."
"To A." --> this language creates what type of freehold estate?
Fee Simple Absolute.
What is the duration of a Fee Simple Absolute?
Absolute ownership, of potentially infinite duration.
Transferability --> devisable, descendible, alienable.
Future Interest --> None.
"To A and the heirs of his body."
What is the duration of a Fee Tail?
Lasts only as long as their are lineal blood descendants of grantee.
Transferability --> Passes automatically to grantee's lineal descendants.
Future Interests --> Reversion (if held by grantor); Remainder (if held by 3P)
What are the defeasible fee freehold estates?
(a) Fee Simple Determinable
(b) Fee Simple Subject to a Condition Subsequent
(c) Fee Simple Subject to an Executory Limitation