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26 Cards in this Set
- Front
- Back
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The two types of CONCURRENT OWNERSHIP?
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1. Joint tenancies
2. Tenancies-in-Common |
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What is the right of survivorship?
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The surviving JTs take automatically on death of a JT; they do not inherit the share.
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What is the right to partition?
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1. Any JT can ask that property be partitioned: lines are drawn and the party is no longer a JT.
2. Can come by agreement of parties, or court can draw the lines; if lines can't be draw, court can sell property and divide proceeds. |
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Creation of a joint tenancy?
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Requires the 4 Unities of Time, Title, Interest, & Possession.
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Define each element of the 4 unities?
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1. Time-all interests must have vested at the same time
2. Title-the grant to all JTs must be by the same instrument 3. Interest-all JTs must take the same time and same amount of interest 4. Possession-all must have identical rights of possession. |
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Language needed to create a joint tenancy?
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Must clearly make intention known, because if intent of the grantor is unclear, court construes the interest to be a tenancy in common.
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Necessary language on exam?
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"As joint tenant, with right of survivorship" or "in joint tenancy with right of survivorship"
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Destruction of joint tenancy?
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1. Partition: a voluntary destruction
2. Severance: an involuntary destruction. Occurs whenever any one of the four unities is disturbed. |
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The Four ways to sever?
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1. Conveyance
2. Mortgage 3. Contract of Sale 4. Creditor's Sale |
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What's a conveyance?
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One JT's transfer of his or her interest creates a severance that destroys just the seller's joint tenancy, turning it into a tenancy in common in the buyer, with the other JTs continuing to hold their interests in joint tenancy.
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A mortgage (lien theory)?
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Lien theory (majority): no severance of the Joint tenancy. When mortgage is executed, a lien merely attaches to the title; title does not get transferred, so no unity is disturbed.
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A mortgage (title theory)?
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Minority view. Severance. When mortgage is executed, title actually passes from mortgagor to mortgagee; even though, later on, the title goes back to the mortgagor, the unity was disturbed.
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Contract of sale?
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Doctrine of equitable conversion means severance occurs when a contract of sale is signed
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Creditor's sale?
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No severance until actual judicial sale. A creditor's judgment lien is not enough-there has to be an actual judicial sale.
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TENANCIES IN COMMON
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Intro Card
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Two characteristics of a Tenancy in Common?
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1. Right to partition
2. NO right to survivorship |
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What unity is required for tenants in common?
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Only one unity: POSSESSION!
All tenants in common must have equal rights of possession. |
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ALLOCATING RIGHTS & DUTIES BETWEEN OR AMONG CO-TENANTS (INCIDENTS OF CO-OWNERSHIP)
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Intro card
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What are the 3 aspects to consider under incidents of co-ownership?
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1. Possession
2. Accountability 3. Contribution |
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What is possession?
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Each co-tenant has the right to possess all the property consistent with the other co-tenants' rights to also possess it all.
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Accountability?
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Requirement that one co-tenant may have to account to another for a share of profits the co-tenant received.
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What does getting an accounting mean?
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Getting a share of the profits from a co-tenant.
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What is the general rule on accounting between co-tenants?
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One co-tenant does not have to account to another co-tenant for a share of the profits.
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The 4 exceptions to the general rule on accounting?
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1. Ouster-accounting is required if one co-tenant is either keeping a co-tenant off the property, or claiming a right of exclusive possession
2. Agreement to share 3. Lease of the property by co-tenant to a third party 4. Contribution-right of one co-tenant to force others to pay their share of some expenditure co-tenant made. |
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Is there contribution for improvements or non-necessary repairs?
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No, but money spent may later be recouped at partition or sale of property.
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What else is contribution available for?
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Available for any mortgage on the property (signed by all co-tenants), or any governmentally imposed obligation
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