Property Ii

Front 1

Tenancy in Common

Back 1

A tenancy in common is presumed to exist if there is conveyance to two or more people. It can be created expressly in a deed or will, but if there is an inheritance then a TIC is presumed. The respective shares can be unequal depending on how much money a cotenant has put into the property with relation to the other cotenants. If a cotenant dies, their share will pass to that cotenant's heirs or devisees. A tenancy in common can be terminated by an action for partition.

Front 2

Joint Tenancy

Back 2

A joint tenancy requires four unities and clear language that will help distinguish a joint tenancy from a tenancy in common. The four unities are time, title, interest, and possession. Furthermore, a joint tenancy can only be terminated by severance or partition. Severance comes about when one or more of the unities are destroyed.

Front 3

Time

Back 3

All joint tenants interest must be acquired or vested at the same time

Front 4

Title

Back 4

All joint tenants must acquire title by the same instrument (i.e., deed, will, etc..)

Front 5

Interest

Back 5

The joint tenants' must have equal undivided shares and identical interests that are measured by duration. This usually involves a fee simple. If a joint tenant dies, the surviving joint tenant takes the deceased joint tenant's interest and thus the deceased join tenant's land because JT operates with rights of survivorship. When a joint tenant dies, their interest vanishes. The surviving joint tenant already owns an interest in all the property, so nothing passes from the deceased to the survivor.

Front 6

Possession (unity)

Back 6

Each joint tenant must have equal rights of possession of the whole property. Concurrent owners must have an equal right to possess the entire property, and not just a portion of the property.

Front 7

Language

Back 7

The language used for a joint tenancy is key due to the modern presumption for tenancy in common. Statutes may specify the language required to create a joint tenancy (i.e., to A and B as joint tenants with rights of survivorship). If the language creates a right of survivorship, then a court is more likely to decide that the language creates a joint tenancy.

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Creating an indestructible right of survivorship

Back 8

There are three ways to create an indestructible right of survivorship. One can create a joint life estate with a contingent remainder in fee simple to the survivor. They can also create a tenancy in common in fee simple where the survivor holds an executory interest. Lastly, the join tenants can create a fee simple that will take effect in possession in the future.

Front 9

Tenancy by the entirety

Back 9

A tenancy by the entirety is created through the four unities used in joint tenancy, but adds marriage as a "fifth unity". Here, there are no respective shares because the married persons are considered to be one unit. If one cotenant dies, the surviving spouse takes the deceased's interest/land. A tenancy by the entirety is terminated by divorce, and not by severance or partition. Because marriage is a fifth unity, when the unity ends the tenancy by the entirety also ends.

Front 10

Partition

Back 10

A partition terminates the cotenancies for both joint tenancies and tenancies in common. This may occur by agreement of all cotenants or by a lawsuit authorized by statute. Partitions are allowed by any cotenant to promote alienability of land. One can waive their right to partition so long as the waiver is not an unreasonable restraint on the alienability of land. There are two types of partition: partition in kind and partition by sale. The parties cannot choose what type of partition they will do; it is up to the court to decide. However, if all parties prefer one type of partition, the court will likely agree with the parties.

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Partition in kind

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Partition in kind physically divides the property into separate ownerships

Front 12

Partition by Sale

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With partition by sale, the property is sold and the proceeds are split between the owners depending on the proportionate shares. However, property can be given to one cotenant and that cotenant will have to pay the other cotenant some kind of compensation.

Front 13

Possession

Back 13

Both cotenants are entitled to use the property as they wish. If one cotenant is in exclusive possession, the majority rule states that no rent is owed by the cotenant in exclusive possession, but the occupier is responsible for carrying charges up to fair rental value. This includes taxes, mortgage interests, insurance, necessary repairs, etc... However if one cotenant ousts the other, the cotenant in possession must pay the other cotenants rent (i.e., fair rental value that the other cotenant could occupy). For this to occur, the ousted cotenant must have demanded to enter or actually tried to physically enter the premises.