special problems, cotenancy, partition rights and duties Flashcards Preview

Property law > special problems, cotenancy, partition rights and duties > Flashcards

Flashcards in special problems, cotenancy, partition rights and duties Deck (20)
Loading flashcards...
1

What are the steps for a RAP problem

Step 1:  Identify the type of interest and make sure the RAP applies:
• Executory interest;
• Contingent remainder;
• Vested remainder subject to open;
• Purchase option; and
• Right of first refusal

Step 2 : Is it possible to interpret the facts so someone can claim an interest more than 21 years after everyone currently alive is dead?
• If yes, the future interest is wiped out and interpret the rest of the grant accordingly.
• If no, the interest will stand.

2

What are the three kinds of Concurrent Ownership?

Joint Tenancy
Tenancy in Common
Tenancy by the Entirety

3

Tenancy in Common: what are the rights of the co-tenants?

Each co-tenant owns an undivided possessory interest in the whole of the property.

4

Joint Tenancy: What are the rights of the co-tenants?

Each co-tenant owns an undivided possessory interest in the whole of the property AND has a right of survivorship.

5

Explain the right of survivorship under common law and modern majority law.

If you have property that is jointly owned, and one of the co-tenants dies, the property passes to the surviving co-tenant automatically.
o Common Law: A conveyance to two or more people to jointly own property was presumed to create a joint tenancy, unless specifically stated otherwise.
o Modern Majority: A conveyance to two or more people to jointly own property is presumed to create a tenancy in common, unless specifically stated otherwise.
o You MUST use language to demonstrate that you want the right of survivorship attached to the grant.

6

Under a right of survivorship what happens to the property rights in the examples?

1. EXAMPLE: If A and B own property as joint tenants and B dies, the property

2. EXAMPLE: If A, B, and C own the property as joint tenants and C dies, C’s interest passes to A and B, and A and B own the property as joint tenants. If B then dies

1. automatically passes entirely to A, and A owns the property outright.


2. A owns the property alone.

7

T or F o The right of survivorship takes precedence over a will or inheritance by intestacy.

True

EXAMPLE: A and B own property as joint tenants, B dies and his will provides “I leave all of my interest in real property to C.” Joint tenancy with right of survivorship takes precedence and the will clause will not control. A takes the property.

8

T or F  If there is a tenancy in common (no right of survivorship) a concurrent interest held in a tenancy in common is freely transferable and can be willed away or inherited through intestacy.

True

9

o Traditionally, a joint tenancy requires four unities (TTIP):



o Today, most jurisdictions do not require the unities of time and title:

 Time: Joint tenants must take at the same time;
 Title: Joint tenants must take by the same instrument;
 Interest: Joint tenants must take equal shares of the same type; and
 Possession: Each joint tenant has the right to possess the whole.


only interest and possession.

10

 Tenancy in common only requires unity of possession. Give an example

EXAMPLE: A and B own a piece of property as tenants in common. A owns 25%, B owns 75%. Each owns the entire parcel, but A owns 25% interest and B owns 75% interest.

11

o Main Differences between Joint Tenancy and Tenancy in Common

 Right of survivorship.
 Four unities: time, title, interest, and possession.

12

Tenancy by the Entirety

hint: married couples

o A form of concurrent ownership reserved for married couples, which gives each spouse an undivided interest in the whole of the property and a right of survivorship, unless expressly stated otherwise.
o Can be created by deed or will, but not by descent.
o Not recognized in community property states.

13

o Tenancy by the Entirety - severance only occurs when:

 The spouses jointly convey to a third party;
 One spouse conveys to the other spouse; or
 The couple divorces.

14

o Severing a Joint Tenancy Creates a ___________. ____ ____________. How can this be done?

tenancy in common

 Done by an inter vivos act of one of the parties.
• Can seek a partition action.
• Joint tenant sells his interest in the property.
EXAMPLE: A, B, and C own property as joint tenants. If C sells his or her interest in the property, it severs the joint tenancy as to C, but remains intact as to A and B.
EXAMPLE: If A, B, and C own property as joint tenants, they each hold a 1/3 interest in the property. When C sells his or her 1/3 interest in the property to D, the joint tenancy remains intact as to A and B, who would have a joint tenancy over 2/3 of the property. They would own the property as tenants in common with D. Joint tenants A and B have a 2/3 interest, D would have a 1/3 interest.
• Joint tenant mortgages his/her interest in the property.
o Majority View (Lien Theory Jurisdiction): Mortgage is viewed as a lien on the property, will not sever.
o Minority View (Title Theory Jurisdiction): Mortgage is viewed as a title to the property, will sever.

15

o Giving out a lien on the property will not sever a joint tenancy, but what will?

but transferring title to the property will sever a joint tenancy.

EXAMPLE: If A and B own property as joint tenants and B mortgages his or her interest in the property in a lien theory jurisdiction, it will not sever the joint tenancy. In a title theory jurisdiction, when B mortgages his or her interest in the property, it has the effect of transferring title and will sever the joint tenancy, turning it into a tenancy in common.

16

o In both types of jurisdictions, the mortgage encumbers only the portion belonging to the mortgagor. In lien theory jurisdictions, if the mortgagor dies before pay-off or foreclosure?

. If there is a foreclosure before the mortgagor dies, the foreclosure?

, the living joint tenant(s) inherits the whole free of the mortgage

the foreclosure severs the joint tenancy

17

o Each co-tenant has the right to seek partition of the property.
o Voluntary Partition:

o Involuntary Partition:

Voluntary partition: Done by exchange of deeds or selling the property and dividing the proceeds.

o Involuntary Partition: Is the result of a partition action filed by one or more co-tenants in court

18

Rights and Duties of a Co-tenant
Possession: Each co-tenant is entitled to possess the whole property.
Wha can a co-tenant do If a co-tenant is denied possession of the property?

 If a co-tenant is denied possession, they can bring suit for damages and/or ejectment

19

Rights and Duties of. Co-Tenant

Profits

T or F  If a profit is produced by one of the co-tenant’s efforts, then the other co-tenants have a right to share in those profits


 If a profit is generated by a third party (e.g., rent), then all co-tenants are entitled to

False the other co-tenants have no right to share in those profits (unless they’ve been ousted from the property).


proportionate share of the profits.

20

What are a co-tenants duties with respect to paying Taxes/Mortgages, Repairs, or Improvements?

Taxes/Mortgage Payments: Each co-tenant must pay a proportionate share.

Repairs: No direct duty of repair imposed on any co-tenant; however, a co-tenant who makes repairs to the property may be compensated for the amount of the repair by a set-off against any third party rents received or from proceeds in a partition action.

Improvements: Generally, there is no duty imposed on any co-tenant to improve the property. If one co-tenant chooses to improve the property, they cannot get contribution from the other co-tenants.

• Exception: If the property is sold, any amount attributable to the improvement goes to the tenant who made the improvement.
EXAMPLE: Able and Baker are co-tenants. Able builds an addition to the house on their property valued at $50,000. The value of the house prior to the improvement was $100,000. At a partition sale, the house is sold for $160,000. Able should receive $105,000 of the proceeds and Baker $55,000.