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24 Cards in this Set

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From the APALSA outline
Special aspects of: Joint Tenancies w/right of Survivorship - JTWROS – key feature is the right of survivorship
1. When A dies, B gets A’s share. 2. Equal shares – courts CAN divide shares unequally 3. Used to avoid probate – transfers property at death w/o probate 4. Joint Tenant can only sever JTWROS as to himself (can be express or implied)
Define: Tenancy by the Entirety- TBE
Tenancy by the Entirety- TBE – only exists between husband and wife 1. Basically a JTWROS between husband and wife a) Does not exist in community property states, exists in some common law states
Special aspects of: Tenancy in Common- T/C –
1. No right of survivorship – co tenant’s interest passes at death by will or intestacy 2. Fractions need not be equal – 1/10 and 9/10.
What are each of the letters of JTWROS mean?
II. JTWROS – joint tenancy w/right of survivorship – when one JT dies, the land will pass directly to the surviving JT. The dead JT’s interest is extinguished. Note – Even a will cannot sever a JTWROS the grant must be done while alive
What are the 4 unities of the JTWROS? Why do we need them?
A. 4 unities – TTIP – Need these to create JTWROS 1. Time – interests must arise at the same time 2. Title – interests must arise under the same instrument 3. Interest- interests must be identical, must be equal as to % 4. Possession – there must be a common right of possession and ownership a) If any of the unities is missing, they have a T/C
What are the Presumptions for Joint Tenants? What are they at commmon law? What are they today?
B. Presumptions – what to do if the grant is ambiguous 1. Common law – presumed any JT is a JTWROS unless there was a clear intent to create T/C a) Unless between a married couple, then it was a TBE 2. Today – courts presume T/C unless clear intent to establish JTWROS
How is the granting language for: O to A and B as JTWROS and not as T/C.
(this is perfect) C. Granting Language Intent - Need to express perfectly in grant that intend to create JTWROS
How is the granting language for: O to A and B as JTWROS
(probably OK)
How is the granting langauge for; O to A and B as JT and not as T/C
(probably OK)
How is the granting language for: O to A and B as JT
How is the granting langauge for: O to H and W as husband and wife
(in Jx w/TBE, that would be TBE) (1) Some Jx have abolished the JTWROS
O to A, B, C as JT. AD then B dies intestate w/H as heir. State title.
a) A transferred to D – express severance. D owns A’s 1/3 as a T/C. b) B and C are still JTWROS – A’s severance applies only to his fraction. When B dies, his share passes to C (not to H) (1) State of title when B dies is (a) D (1/3) and C (2/3) are now T/C.
O to A and B for their joint lives, remainder to the survivor \\\ state titles
a) This is not a JTWROS. This is some kind of a concurrent interest in a L/E. b) Future estate is a C/R in survivor of A or B c) O has technical RVN. (1) If A was older, risk averse he would rather have a JTWROS because he could sever it and then change the title to a T/C. A could then dispose it or if he died intestate it would go to his successors.
What is Severance?
Severance – final express conveyance of tenant’s full interest severs the JT. 6 ways to sever
What are the 6 ways to sever? Just list them..
1. Conveyance to third party 2. Conveyance to self 3. Granting of mortgage 4. Granting of Lease 5. Granting of L/E by one JT 6. Partition
Define: Severance: -- Conveyance to third party
1. Conveyance to third party – one tenant can convey to TP. Severance applies to that tenant only, not to the others
Define: Severance -- Conveyance to self
2. Conveyance to self – old law held that conveyance to a “strawman” (third party – usu. lawyer, paralegal who would then grant it back) was necessary to sever, but modern courts are willing to grant severance by self-conveyance a) Riddle v. Harmon- wife conveys half of JTWROS to herself, doesn’t want her husband to have the whole property. Court is modern and allows her to do this w/o a strawman. This is an example of an express secret severance
Define: Severance --- Granting of mortgage – JX split is..
3. Granting of mortgage – When one JT gives a mortgage on the property, does this sever JTWROS because the unity of interest is destroyed? Harms v. Sprague- brother puts up B/A for collateral for friend’s house…did that sever JT between him and brother? In this case trial court implied a severance (reversed), but there is a split in authority: a) Lien theory states (upon mortgage, bank has an equitable interest in B/A – JT still owns the property) – there is definitely no severance. The unity of title has still been preserved. b) Title theory states (upon mortgage, bank has legal title to the property – Bank owns property) – probably no severance – (1) Dobie thinks that a mortgage should NEVER sever JTWROS (2) This is example of implied secret severance – we don’t like these. Only will usually grant these when severance was likely intended and when it is socially wholesome.
Define: Severance -- Granting of Lease
4. Granting of Lease – this is probably not a severance -
Define: Severance -- Granting of L/E by one JT
5. Granting of L/E by one JT– probably not a severance
Define: Severance-- Partition
6. Partition – will sever the JTWROS
Why imply a severance of a JTWROS?
1. JT’s are usually married, mates, partners, and siblings. We are protecting them by NOT implying severances (widows won’t know what is going on). 2. Basic rule: implied severances are RARE
Liens -- IN some Jx, do liens placed by one JT survive that JT’s death? Why?
G. Liens 1. IN some Jx, liens placed by one JT do not survive that JT’s death a) This makes both people sign the lending instrument at the bank and allows wives to know what is going on when husbands are taking loans on the property. b) Small lenders are hurt by this, they need to get a lawyer