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Flashcards in Midterm Deck (159):

7 Policy Values that Drive Property

Predictability; Clarity; Security; Alienability; Economic Efficiency; Labor; Fairness



"Property law protects justified expectations. A central function of property law is to determine what the parties' actual expectations are and when they are, and are not justified."



More Clarity in the law means less litigation



People need to feel like they are safe and secure in their property



The law favors a free-flowing market in property, rather than placing a burden on property that will make it practically impossible to sell.


Economic Efficiency

The law favors the best and most productive economic use of property from the viewpoint of society as a whole



The law favors rewarding labor, that is, rewarding people who work hard to create or improve property.



The law tries to reach a result in every dispute over property that seems the most fair or just in light of all the facts and circumstances.


8 Rules for Possession

1. Prior peaceable possessor (2) Conveying property (3) Thieves (4) Entrusting property to ordinary persons (5) Entrusting property to merchants (6) True owner under fraud/duress (7) Pursuit of Wild property (8) Outside interference


1. A prior peaceable possessor

A prior peaceable possessor who was ousted by a subsequent possessor can recover possession even though the former cannot demonstrate he or she has a legal right to possession.


2. Selling (conveying) Property

You can only convey (sell) a property interest that is yours. When you knowingly sell a property interest that does not belong to you, it is called "conversion".


3. Thiefs

If a thief steals and sells property, the bona fide (or innocent) purchaser will not prevail in a dispute with the the true owner


4. Entrusting property to Ordinary Persons

If a true owner entrusts property to an ordinary person, and the latter sells it (without permission), the bona fide purchaser will not prevail in a dispute with the true owner


5. Entrusting property to Merchants

If a true owner entrusts a property to a merchant who regularly deals in such goods, and the latter sells it, (without permission), the bona fide purchaser will prevail in a dispute with the true owner.


6. True owner under fraud/duress

If a true owner is induced to sell by fraud or durress, he can recover the property unless it has been sold to a bona fide purchaser


7. Pursuit of Wild Property

Pursuit alone does not establish possession of wild property. Possession requires some act that deprives the property of its natural liberty and/or renders escape impossible.


8. Outside interference

When an outsider interferes with a person's ability to establish first possession, but the defendant was not at fault, the parties have equal claim to first possession.


8 rules for Oil, Gas, and Water

(1) Law of Capture (2) Doctrine of Free Use/Absolute Ownership (3) Reasonable and Legitimate Drainage (4) American Reasonable Use Rule (5) Correlative Rights Doctrine (6) Prior Appropriation Doctrine (7) Riparian Doctrine (8) Prior Appropriation Doctrine for surface water


Law of Capture

The owner of a tract of land acquires titled to the oil/gas/water which produced from on his land, even if part of the oil/gas/water may have migrated from adjoining lands. Majority rule for Oil and gas.


2. Doctrine of Free/ Absolute Ownership

For groundwater(minority rule), the law of capture is sometimes called the law of free use, absolute ownership.


3. Reasonable and Legitimate Drainage

The law of capture/doctrine of free use/absolute ownership only applies to reasonable and legitimate drainage of oil/gas/water, not to the waste of these underground resources due to negligent conduct. Even in law of capture jurisdictions, the law imposes a duty on all persons to exercise ordinary care to avoid injury or damage to the property of others. Those who waste oil and gas through negligence are liable for damages to reasonably compensate the injured party for losses sustained as the proximate result of the negligent conduct.


4. American Reasonable Use Rule

For groundwater, the majority rule is not the law of capture, but rather the "American reasonable use rule": Owners of land overlying an acquifer may withdraw water only if they put the water to reasonable use on their overlying tracts. Also, water withdrawls that unreasonably harm other other surface land owners or exceed a reasonable share is actionable. Courts balance the interests of the parties in the case and of society as a whole in determining what is "reasonable." Minority rule for oil and gas


5. Correlative Rights Doctrine

For ground water, allows each surface land owner to withdraw an equitable ("fair and just") share of the groundwater. Minority rule for oil and gas.


6. Prior appropriation doctrine

For ground water, allocates rights according to who drew on water first and how much they drew historically. Minority rule for Oil and Gas.


7. Riparian Doctrine

For surface water, the riparian doctrine allocates water to owners of land bordering a surface source (such land is called "riparian land"). Riparian Doctrine jurisdictions apply a reasonable use rule that balances the internets of the riparian landowners and of society as a whole to determine what is "reasonable"


8. Prior appropriation for surface water

allocates water rights based on who first put the water to beneficial use, and how much water they used beneficially ("first in time is first in right"). Beneficial use includes irrigations, industrial, and drinking water usuage.


8 Finders Rules

1. Rebuttable Presumption (2) Lost (3) Mislaid (4) Abandoned (5) Title of lost/mislaid (6) title of Abandoned (7) Right of finder (8) Buried Property


1. Rebuttable Presumption

Absent evidence of superior titled (such as written or credible eyewitness evidence), physical possession of property creates a rebuttable presumption that the possessor has good legal title to that property. (This is a default rule, so it can be rebutted by contrary evidence, but the burden of production and proof is on the person arguing the possessor does not have good legal title.


2. Lost Property

Property is "lost" in the legal sense when the owner accidentally misplaced it.


3. Mislaid Property

Property is "mislaid" in the legal sense when the owner intentionally left it somewhere and the forgot where she put it.


4. Abandoned Property

Property is "abandoned" in the legal sense when the owner forms the intent to relinquish all rights in the property.


5. Title of Lost/mislaid

A finder of lost or mislaid property does not acquire title to that property against the true (original) owner.


6. Title of Abandoned

A finder of abandoned property does acquire title to that property against the original owner who abandoned it.


7. Rights of Finders

A finder of property has a right to prevail over all other claimants except the true owner or a prior possessor


8. Buried Property

Burying property with the bodies of deceased person does not result in "abandonment" of that property, because the buriers intent is for the property to remain with the body.


5 Intellectual Property Topics

1. Trademark (2) Copyright (3) Rights in News (4) Patents (5) Rights of Publicity


6 Rules of Trademark

1. Definition (2) Consumer confusion (3) Mark (4) Mark requirement (5) Exclusive right (6) Abandonment


1. Definition of Trademark law

Trademark Law grants exclusive rights in ANY WORD, NAME, SYMBOL, OR DEVICE, OR ANY COMBINATION THEREOF, that indicates the (corporate) SOURCE of goods or services (usually the source is a corporation). These are called "marks".


2. Consumer Confusion

Trademark law exists to prevent consumer confusion. This is not to protect consumers per se. It is to protect the "goodwill" created by the original company from being misappropriated (used to compete unfairly) by another company.


3. Mark

The definition of "mark" is very broad. If a "person" uses or intends to use the mark to identify or distinguish his or her goods from those manufactured or sold by others, that mark can be trademarked.


4. Trademark Requirements

If these requirements are met, a particular SHAPE, SOUND, SCENT, or COLOR can be trademarked.


5. Trademark Exclusive rights

If you successfully establish the creation of a "mark" within the meaning of trademark law, you have exclusive right to use the mark in connection with the sale of a particular good or service


6. Abandonment

Failure to use a trademark for a long time may constitute abandonment of the trademark


7 Copyright Protection Rules

1. Definition (2) Requirements (3) Original (4) authorship (5) Facts (6) Exclusive right (7) Duration


1. Definition of Copyright

Generally speaking, copyright law grants property rights in literary and artistic works.


2. Copyright Requirements

The requirements for copyright protection are that the work must be (1) an "original" work; (2) of "authorship"; (3) fixed in a tangible medium


3. Original

9. For copyright purposes, "original" means that the work was independently created by the author and that it possesses at least some degree of crativity.


4. "Authorship"

For copyright purposes, "authorship" means the thing was created by an author. (Facts cannot be copyrighted, for example, because facts are discovered, not created. Facts do not owe their origin to an act of authorship.)


(5) Facts

Although "facts" cannot be copyrighted, an original "compilation" of facts can be, as long as it meets the requirements for copyright protection. A "compilation" of facts in copyright is a work formed by the collection and assembling of pre-existing facts that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship


(6) Copyright Exclusive Rights

Owners of copyrights have exclusive rights to copy, distribute, perform, or display those works publicly.


(7) Duration

Copyright protection last for the life of the author plus 70 years, after which the work becomes part of the public domain.


3 Copyright Policy Values

(1) Promotion of Learning (2) Protection of the Public Domain (3) Exclusive (Limited) Rights of the Author


(1)Promotion of Learning

When people create original works, society as a whole learns more, so it's in society's best interests to encourage creative endeavors.


(2) Protection of the Public Domain

Copyrights traditionally were indefinite. But when copyrights have an expiration date, the public domain becomes increasingly more rich, which benefits society as a whole. (Note tension w/ policy value #1)


(3) Exclusive (Limited) Rights of the Author

Copyrights grant limited rights, for a limited time, to financially reward authors for creating. This is the for fairness sake and so they will keep creating. Interestingly, the property right is not in the creation itself, but in the copyright interest in the creation.


5 Rules of Copyright Infringement

(1) Prima Facie elements (2) Substantial Similarity (3) Burden (4) Fair Use (5) 4 Factors


(1) Copyright Infringement Prima Facie Elements

The 2 prima facie elements of a claim for copyright infringement are: (1) the plaintiff owns a valid copyright; and (2) the defendant copied original elements of the copyrighted work.


(2)Copyright Infringement Substantial Similarity

To prove "copying", the plaintiff must show a "substantial similarity" between the two works such that an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.


(3) CI Burden

Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to show his act of copy constitutes "fair use" within the meaning of copyright law.


(4) CI Fair Use

"Fair Use" is copying for purposes such as "cricism, comment, news reporting, teaching (including multiple copies for classroom use) scholarship, or research."


(5) CI 4 Factors

In determining whether the use made of a work in any particular case is a "fair use" the factors to be considered shall include: (1) The purpose and character of the use, including whether such use is of a commercial nature or is for non profit educational purpose. (2) The nature of the copyrighted work; (3) The amount of substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for or value of the copyrighted work.


5 Contributory Infringement Rules

(1) Definition (2) Presumption (3) Characteristics (4) Literal Site (5) Use


(1) Contibutory Infringement Definition

Contributory Infringement is intentionally inducing or encouraging direct infringement


(2) Contributory Infringement Presumption

When an item can be used in infringing or non-infringing ways, a court may NOT presume the company that created the item intended to induce or encourage infringement merely from the facts that it made and sold the item and knew many would use the item in ways that infringed copyright. If this is the only evidence of contributory infringement, the defendant is entitled to summary judgement (VCR case).


(3) Contributory Infringement Evidence

But when the evidence of contributory infringement goes beyond a product's characteristics , and beyond the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, a finder of fact may find contributory infringement so the case must proceed to trial.


(4) Contributory Infringement Literal Site

Such evidence might include a showing that company's own property is the literal site for, and mostly used for, copyright infringement. (Napster Case)


(5) Contributory Infringement Use

Such evidence might also include a showing that the product is mostly used for infringing purposes, the company advertised its product in a way that invited copyright infringement, and a showing that the company made no effort to impede the sharing of copyrighted files. (Grokster case)


2 Rights in News Rules

(1) Hot News (2) Rights in News


(1) Hot News

"Hot News) that cannot be copyrighted may nevertheless be protected by a common law "right in news"


(2) Rights in News

"Rights in News" is narrow. To claim a "right in news" the plaintiff must establish five elements: (1) The plaintiff has generated or gathered information at a cost; (2) The information is time-sensitive; (3) the defendant's use of that information constitutes free-riding on the plaintiffs efforts; (4) The defendant is in direct competition with a product or service offered by the plaintiffs; and (5) allowing free-riding would reduce the incentive for plaintiffs or others to produce the product or service.


7 Rules of Patent Law

(1) Coverage (2) Requirements (3) Naturally occuring (4) Human body parts (5) Non obvious (6) Remedies (7) Injunction Remedies


(1) Patent law definition

Patent Law grants inventors of "methods of manufacture", "machines", and "compositions of matter" a monopoly over their inventions for up to 20 years.


(2) Patent Law Requirements

A patent will only be granted if four requirements are met. (1) The subject matter of the invention is "patentable" in the sense that it is a "method of manufacture", a "machine" or a "composition of matter"; (2) the invention is novel; (3) the invention is nonobvious; and (4) the invention is useful.


(3) Naturally Occuring

Naturally occurring organisms cannot be patented. Only organisms that are the product of human ingenuity can be patented. It is the inventive effort that patent law rewards, not the discovery of naturally occurring raw materials.


(4) Human body parts

More generally, the common law of property does not treat human body parts as "personal property" that can be bought and sold.


(5) Business method

A business method may be patentable as long as it meets all the usual requirements for patentability. However, it can be difficult for courts to sort out what constitutes a "novel" and "nonobvious" business method.


(6) Remedies

The possible remedies for patent infringement are (1) damages and (2) an injunction


(7) Requirements for an injunction

A court will only issue an injunction as a remedy for patent infringement if the patent owner establishes four elements: (1) the patent owner has suffered an irreparable injury: (2) damages are inadequate to compensate for the injury; (3) an injunction is warranted by the balance of hardships between the parties; and (4) the public interest would not be disserved by a permanent injunction


7 Rights of Publicity Rules

(1) Common Law (2) Likeness (3) Elements (4) Alienable (5) Inheritable (6) Exploited (7) Damages


(1) Publicity- Common Law

The common law "right of privacy" is the right to keep a person's identifying information (for example, their face or name) out of the public domain. Persons have a right to withdraw from the public gaze as they see fit. Private and public persons may bring "right of privacy" claims.


(2) Publicity - Likeness

Generally speaking, the common law "right of publicity" is the right to the exclusive use of a person's "likeness". "Likeness" includes a name, face, voice, or even an imitation of those things.


(3) Publicity - Elements

The elements of a "right of publicity" are: (1) appropriation of another's name or likeness; (2) without consent; and (3) for financial gain. The person whose likeness has been exploited is often a public figure (a celebrity of one kind or another), but a private person can also sue for violation of the right of publicity.


(4) Publicity - Alienable

The "right of publicity" is completely alienable during the person's life. It can be bought and sold.


(5) Publicity - Inheritable

The "right of publicity" is also inheritable and devisable, which is to say, the right survives the person's death. The length of time the right survives the person's death differs by state.


(6) Publicity - Exploited

The person need not have commercially exploited his or her own image during life for the rights-holder to be able to sue after his or her death.


(7) Publicity - Damages

The measure of damages for violation of the "right of publicity" is the value the appropriation to the user.


Estate and Trusts Vocab and Concepts

(1) Future Interests (2) Future Interest Control (3) Dead Hand Control (4) Finite Resources (5) Testator (6) Settlor (7) Trust (8) Trust Creation (9) Declaration of Trust (10) Deed of Trust (11) Legal Title (12) Freehold (13) Leasehold (14) E and FI owner (15) Present Possessory (16) Transfer instrument (17) present estate holder (18) transfer drafts no control (19) transfer drafts to control (20) future interests (21) Future interests control


(1) Future interests

Future interests exist the moment they are created even thought the future interest holder has no right to possess the property until the happening of the triggering event. Present estate and future interest can alienate (sell or grant) their interest in property from the moment it is created.


(2) Future interest control

By allowing the creation of future interests, the law permits grantors the ability to exercise some degree of control over the possession and use of property long into the future. This raises a host of interesting policy questions.


(3) Dead Hand Control

One policy question is the extent to which the law should allow "dead hand control", that is, allow prior owners to control the use of property long after they are dead and gone but discouraging alienability later. Also a person alive today may not be the person to decide the best use of land 100 and 200 years from now.


(5) Finite Resources

Another policy question is whether, given that real property is a finite resource, U.S. law should encourage the concentration of wealth among certain social groups and their descendants (the landed gentry), as Britain historically has.


(6) Testator

A "testator" is a person who dies leaving a valid will. A person who dies without a will is said to die "intestate".


(7) Settlor/trustor

A "settlor" or "trustor" is a person who establishes a trust


(8) Trust

A "trust" is a property arrangement in which a trustor conveys property to one person (the "trustee") for the benefit of a different person ("the beneficiary")


(9) Deed

A trust may be created by a deed during the trustor's life ("inter vivos) or by will upon the trustor's death.


(10) Declaration of Trust

A trustor may transfer property to himself as trustee. In that case, the transfer instrument is called a "declaration of trust"


(11) Deed of Trust

A trustor may also transfer property to another person as trustee. In that case, the transfer instrument is called a "deed of trust".


(13) Legal Title

The trustor is said to hold "legal title" in the trust; the beneficiary is said to hold "equitable or beneficial" title in the trust.


(14) Estates and future interests

Estates and future interests are highly technical subjects in property law. Many of the rules in estates can be understood only as holdovers from the fuedal era in England and have no sensible modern justification. Do not try to force internal logic on the blackletter rules for estates, simply accept they exist and learn them.


(15) 2 categories of "estates"

(1) Free hold estates ( or "freeholds") and (2) leasehold estates (or "leaseholds") Freehold estates are ownership interests in property. (By contract, leaseholds are possessory interests; tenants don't own property, they merely possess it.)


(16) Ownership grant

Estates and future interests allow the current owner of a property to grant ownership of that property in a way that divvies up ownership rights over a future timeline


(17) Transfer instrument

A grantor specifies in a transfer instrument the persons to whom each estate has been given, and the circumstances under which the property will shift from the present estate holder to the future interest holder.


(18) Present Estate Holder

A present estate holder has the right to possess the property while his interest lasts. A future interest holder will obtain a right to possess the property when and if the present interest terminates.


(19) Transfer instrument drafts

Sometimes the transfer instrument is drafted so that the grantee cannot control the circumstances under which the property will shift from him to the future interest holder.


(20) Transfer instrument control

Other times the transfer instrument is drafted so that the grantee can control whether the property will shift from him to the future interest holder.


6 Present Possessory Estates

(1) fee simple absolute (2) fee simple determinable (3) fee simple subject to a condition subsequent (4) fee simple subject to executory limitation (5) life estate (6) term of years


6 Future interests

(1) possibility of reverter (2) right of entry (3) executory interest (4) contingent remainder (5) vested remainder (6) reversion


(1) Fee simple absolute

AKA fee simple. Property ownership without a future interest. Language creating a fee simple includes: "to A", "to A and his heirs", or "to A in fee simple". When a person obtains a fee simple, he or she owns absolutely everything there is to own.


Defeasible Fee

A fee that (per the language of the deed) would terminate at the happening of a specified event other than the death of the owner (if that event happened). Put another way, a fee simple absolute never leaves "A" unless "A" alienates the property, but a defeasible could leave "A" if a particular condition (set by "O") is met. If "A's" interest terminates, the property will revert back to "O" or move onto a third party, "B", depending on the language in the instrument.


Three are three types of defeasible fees

(1) fee simple determinable (2) fee simple subject to a condition subsequent (3) fee simple subject to executory limitation


(2) Fee simple determinable

Created when, if and when a stated events happens, the property will revert back automatically to the grantor (that is, back to "O"). A "fee simple determinable" is always followed by a future interest called a "possibility of reverter". Key deed language that leads courts to find this interest has been created: "so long as", "while", "during", or "unless". If this language is used in the conveyance, and the property would return to "O" if the stated condition happened, the instrument granted a "fee simple determinable" to "A" and retained a "possibility of reverter" in O.


Fee simple subject to a condition subsequent

Created when a stated event happens, the grantor ("O") would have the option of taking the property back. A "fee simple subject to a condition subsequent" is always followed by a future interest called a "right of entry" or "power of termination". Key deed language that leads courts to find this interest has been created: "on condition that", "but if", or "provided that". If this language is used in the conveyance, and "O" (as opposed to "B") is the person with the option of taking back the property, the instrument granted a "fee simple subject to a condition subsequent" to "A" and retained a "right of entry" or "power of termination" in O.


Fee simple subject to executory limitation

Created when, if a stated event happens, a third party ("B") would receive the property. A "fee simple subject to executory limitiation" is always followed by a future interest called an "executory interest". There is no key language here. If "B" (as opposed to "O") would take the property upon the happening of the condition, the instrument granted a "fee simple subject to executory limitation" to "A" and an "executory interest" to B.


Life Estate

The grant of a possessory interest until the grantee's ("A's") death. A life estate for the life of another is called a "life estate pour autre vie".("To A for the life of B"; "A" sells his own life estate to B.)


Term of years

The grant of possessory interest until the expiration of a term fixed by the calendar ("to A for 10 years")



Life estates and term of years are always followed by reversion in "O" or a remainder in "B".



If upon the expiration of A's interest the property would go back to "O", "A" has a life estate and "O" has a future interest called a "reversion".



If upon the expiration of A's interest the property would go to a third person, "B", then "A" has a life estate and "B" has a future interest called a "remainder".


Remainder sub rules

Remainders can be either "contingent" or "vested". Vested remainders can be "absolutely vested", "vested subject to open", and "vested subject to divestment"


Contingent Remainder

Instrument created in "B" if either: (1) the triggering event that would cause "B" to get the property may never happen; OR (2) "B's" identify cannot be ascertained at the time of the conveyance.


Vested remainder

Instrument created if the remainder is not contingent.


Absolutely vested remainder

Remainder that is not subject to change


Vested remainder subject to open

Created when at least one "B" is known, but that may be further divided among other "B's" that may be born in the future.


Vested remainder subject to divestment

Created when "B" is known but a condition is placed on "B" that, if unmet, will "divest" B of the property.



a person who dies with a will has "beneficiaries". His or her beneficiaries are determined by the language in the will.



A person who dies without a will (or "interstate") has "heirs".


Rankings of Heirs

(1) issue (direct descendants); (2) ancestors (parents and grandparents); (3) collaterals (siblings, cousins, aunts, uncles); (4) the State (or "escheat").


Unclear Conveyance

When a conveyance is unclear, two policies come into play: (1) courts seek to implement the intent of the grantor ("O"); (2) courts seek to maximize the free use and alienability of property via a presumption AGAINST finding a future interest (that is, a presumption that what was granted was a fee simple absolute). Sometimes these two policies are in tension


Destruction of Present Possessory

Conditions in an instrument that destroy present possessory estates are disfavored in the law. Accordingly an instrument will be interpreted as having created a fee simple absolute rather than a defeasible fee if the language of the instrument is not crystal clear.


Prohibition of Alienation

A condition in an instrument that prohibits the alienations of a fee is void and will not be enforced by a court.


Prohibition of Life Estate

A condition in an instrument that prohibits the alienation of a life estate is valid and will be enforced by a court.


Duty of Injury

A life tenant (holder of a life estate) or term of years tenant has a duty not to "injury" the property. This means he or she must keep the property in sufficient repair to prevent decay, and not to take any action that is destructive or fundamentally alters the condition of the property. If he or she fails to do so the future interest holders can bring a claim for "waste".


π bringing waste claim

A plaintiff may bring a claim for "waste" EITHER during the life tenant or term of years tenant's possession OR after that possession terminates. A claim for "waste" after termination of a life estate is brought against the (now deceased) life tenant's estate.


Three categories of waste

Voluntary waste, permissive waste, and ameliorating waste


Voluntary waste

Voluntary waste is the commission of some deliberate or voluntary destructive act.


Permissive waste

Permissive waste is failure to exercise the ordinary care of a prudent person for the preservation and protection of the estate. Ordinary depreciation of the property due to age and normal use does not constitute permissive waste.


Ameliorating waste

Ameliorating waste is changing the property in a way that increases its value but fundamentally changes the character or condition of the property.


Answer to Ameliorating Waste

A defendant may answer a claim for ameliorating waste by arguing that a complete and permanent change of surrounding conditions has deprived the property of its usefulness as previously used.


Fourteenth Amendment

The Fourteenth Amendment to the U.S. Constitution prohibits a government actor (such as a judge) from directly enforcing a racial restriction attached to a property interest. This would also apply to other group-based restrictions, such as gender or sexual orientation. However, some jurisdictions will allow racial restrictions in future interests that occur automatically ( and thus in theory do not require court action).


Restrictions on Marriage

Restrictions on marriage are typically upheld as long as they are motivated by a desire to furnish support to the devisee while unmarried, rather than by a desire to "punish" the devisee for marrying.


Property law preference

Property law prefers a fee interest over a life estate or term of years. If an instrument can be fairly interpreted as having created either a fee interest or a life estate/term of years, the court will typically find it created a fee interest.


17 Concurrent Ownership rules



(1) Definition

A single property interest can be owned by to or more persons at the same time. This is called "concurrent ownership".


Property Use

When a single property interest is owned concurrently, the co-owners have to reach agreement on how the property will be used or designate a person or persons to make those decisions.


Three types of concurrent ownership

Tenancy in Common
Joint Tenancies
Tenancies by the Entirety


TIC Creation

A Tenancy in common is created by language such as "To A and B" or "To A and B as tenants in common." The law prefers a TIC over a JT or a TBE, so if the language in the conveyance is imprecise, the law will typically find the instrument created a TIC


(5) TIC Rules

(1) Each tenant in common has an equal right to possession of the entire parcel; (2) if the property is sold, each tenant in common has a right to his or her fractional share of the sale price; (3) when a tenant in common dies, his or her fractional share passes to beneficiaries ( if dies testate) or heirs ( if dies intestate)


(6) Joint Tenancy Creation

A joint tenancy (JT) is created very deliberately, by making sure the so-called "4 unites" are present. The 4 unities are (1) unity of time (all tenants received their interests at the same time), (2) unity of title (all joint tenants received their interests via the same written instrument), (3) unity of interest (each joint tenant has an identical interest), and (4) unity of possession (each joint tenant has a right to possess the whole).


(7) Destruction of Unities

If the four unities are not present, or if one joint tenant "destroys" one of the four unities (by selling his or her interest, for example), the interest he or she sells automatically transforms into a TIC.


(8) Survivorship

If joint tenants successfully create and maintain the joint tenancy, each has a right of survivorship. A right of survivorship means that, when the other joint tenant(s) die(s), the surviving joint tenant(s) take(s) their interest (the interest does not pass into the deceased person's estate).


(9) Severance

If one joint tenant sells, thus severing the joint tenancy, severance occurs only between the selling owner and the remaining owners. ( If A,B, and C own property as JTs and A conveys his interest to D..B and C are still JTs with a right of survivorship vis-a-vis each other but D is a TIC vis-a-vis B and C)


(10) TBE requriments

4 unities plus marriage
Time, title, interest, possession


(11)JT and TIC transfer

Joint tenants and tenants in common are free to transfer their interests without consent of their co-owners.


(12) TBE transfer

Tenants by the entirety may not transfer their interests without the consent of their spouse co-owner.



If concurrent owners cannot agree on how to manage property, they may file a lawsuit for "judicial partition" which means asking a court to carve the parcel into smaller parcels. Concurrent owners can also decide to voluntarily partition property.


(14) Right to Possession

Concurrent owners have a right to possession, so they have no duty to pay rent to each other, unless one of them "ousts" the other (that is, deprives the other of their equal right to possession). Concurrent owners have a right to invite whatever guests they choose.


(15). Ouster

An "ouster" can be actual (changing the locks) or constructive (asking a spouse to leave) When one co-owner "ousts" another, the former must pay rent to the latter.


16. Rent share

Concurrent owners have their right to the numerical share of rents paid by third parties who posses the property


(17) Concurrent owner expenses

Concurrent owners have a duty to pay their numerical share of "basic expenses," defined as mortgage payments, property taxes, and property insurance.