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11 Cards in this Set
- Front
- Back
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Concurrent Estates (3 types)
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Joint Tenancy
Tenancy by Entirety Tenancy in Common |
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Joint Tenancy (definition)
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- Two or more people own property with the right of survivorship (when one tenant dies, his share passes automatically to survivors. Survivor has an undivided right in the property. If there is more than one survivor, they will still have this type of tenancy and the new buyer will be a tenant in common).
- Interest is alienable- can transfer interest during one's lifetime (inter vivos), which destroyes this type of tenancy and creates a tenancy in common. - Interest is not devisable and descendible (b/c of right to survivorship). |
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Creation of a Joint Tenancy
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"4 Unities" of time, title, (same instrument of conveyance), identical equal interests, and identical rights to possess the whole.
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Severance of a Joint Tenancy
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"SPAM": Sale, Partition, And Mortgage
(Title Theory of Mortgages- Joint tenant’s execution of a mortgage or a lien on his or her share will sever the joint tenancy as to that share. (minority of states)) (Lien theory of mortgages – joint tenant’s execution of a mortgage on his or her interest will not sever the joint tenancy. (majority of states)) |
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Partition (3 variations)
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Ways to end relationship of concurrent tenants:
(1) By voluntary agreement (2) Partition in kind (court action for physical division of property in best interest of all parties) (3) Forced sale (court action if in best interests of all where land is sold and sale proceeds divided up proportionately) |
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Title Theory of Mortgages
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Joint tenant’s execution of a mortgage or a lien on his or her share will sever the joint tenancy as to that share. (minority of states)
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Lien theory of mortgages
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Joint tenant’s execution of a mortgage on his or her interest will not sever the joint tenancy. (majority of states)
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Tenancy by Entirety (recognized in 21 states)
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Protected marital interest between H & W with the right of survivorship.
- Arises in any conveyance to H and W unless clearly stated otherwise. “Can’t Touch This” 1. Creditors of only one spouse can’t touch the tenancy. 2. Unilateral conveyance by one spouse acting alone cannot defeat the right of survivorship. |
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Tenancy in Common
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Two or more own concurrent estate with no right of survivorship.
3 Features: 1. Each co-tenant owns an individual, distinct, proportionate, and undivided part and each has a right to possess the whole. 2. Each interest is descendible, devisable, and alienable. There are no survivorship rights between tenants in common. 3. The presumption favors the tenancy in common. |
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Rights and Duties of Co-Tenants (9)
- (1-4) |
1. Possession
a. each is entitled to possess and enjoy the whole property. b. If one wrongfully excludes another from possession of whole or any part, he has committed wrongful ouster. 2. Not liable to the others for rent (absent ouster). 3. Co-tenant who leases all or part of the premises to a THIRD PARTY must provide others their fair share of the rental income (proportion of prop they own) BUT each has right to retain PROFITS gained by her use of property unless there's agreement to contrary. 4. Adverse possession - Unless one has ousted the other co-tenants (i.e. occupation w/o permission), one co-tenant in exclusive possession for statutory adverse possession period cannot acquire title to the exclusion of the others. Difficult to show HOSTILITY... |
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Rights and Duties of Co-Tenants (9)
- (5-9) |
5. Each is responsible for her fair share of carrying costs (taxes and mortgage interest pmts based on undivided share that each holds).
6. Repairs – right to contribution for reasonable and necessary repairs if she has notified the others of the need for the repairs. 7. No right to contribution for “improvements" during life of co-tenancy. At partition, the improving co-tenant is entitled to a credit equal to any increase in value caused by her efforts. - Improver bears full liability for any decrease in value caused by her efforts 8. Waste – not liable to other co-tenant for losses from use of the land. 9. Partition – right to bring an action for partition. |
