Property

What are the three forms of concurrent ownership?

joint tenancy (2+ owners/ with right of survivorship)

tenancy by the entirety (protected marital interest between spouses w/right of survivorship)

tenancy in common (2+owners w/no right of survivorship).

Define joint tenancy.

concurrent estate held by 2+ where each owns an undivided interest in the whole and, upon the death of 1 JT, Tenant's share automatically passes to the surviving JTs via right of survivorship

What is the right of survivorship?

Under the right of survivorship, when one joint tenant dies, that tenant's interest is automatically extinguished and passes to the surviving joint tenant(s); it does not pass through the decedent's estate.

Is a joint tenant's interest devisable or descendible?

JTs interest is alienable during life but neither devisable nor descendible bc the right of survivorship operates @ death to vest the interest in the surviving joint tenant before any will or intestacy statute can take effect

What is the effect of a joint tenant attempting to dispose of the property by will?

void

Define "alienable inter vivos," "devisable," and "descendible."

An interest is alienable inter vivos if it is transferable during the holder's lifetime; it is devisable if it can pass by will; and it is descendible if it can pass through the statutes of intestacy (i.e., when one dies intestate, without a will).

What four unities are required to create a joint tenancy?

A joint tenancy requires the four unities, remembered as T-TIP: the joint tenants must take their interests at the same Time, by the same Title (the same legal instrument, usually a deed), with Identical and equal Interests, and with the right to Possess the whole.

Beyond the four unities, what else is required to create a joint tenancy?

In addition to the four unities, the grantor must make a clear statement of the right of survivorship in the instrument creating the interest, e.g., "To A and B, as joint tenants, with the right of survivorship."

How do courts treat the language "A and B are joint tenants" versus "A and B take jointly" or "as co-owners"?

Language expressly designating "joint tenants" creates a joint tenancy, but language such as "take jointly" or "co-owners" raises a presumption of a tenancy in common, which carries no automatic right of survivorship.

How does a sale or transfer by one joint tenant affect the joint tenancy?

A joint tenant may sell or transfer her interest during her lifetime, even secretly and without the other tenants' consent; because the unity of time is broken, the transferee takes as a tenant in common rather than a joint tenant.

If there are three or more joint tenants and one sells her interest, what happens to the remaining tenants?

When one of three or more joint tenants transfers her interest, the joint tenancy is severed only as to the transferred share; the remaining, non-transferring joint tenants continue to hold as joint tenants among themselves with the right of survivorship intact.

What are the three variations of partition?

Partition may occur by (1) voluntary agreement (an amicable end), (2) partition in kind (a judicial physical division of the property, favored when it is in the best interests of all parties), or (3) forced sale (a judicial sale with division of the proceeds).

When is partition in kind preferred over a forced sale?

Partition in kind, the physical division of the property, is preferred when such a division is in the best interests of all the parties; otherwise a court may order a forced sale and divide the proceeds.

Under the majority (lien theory), does one joint tenant's mortgage sever the joint tenancy?

Under the majority lien theory, a mortgage is merely a lien on the debtor joint tenant's interest and does not destroy the unity of title; therefore the execution of a mortgage does not sever the joint tenancy.

Under the minority (title theory), does one joint tenant's mortgage sever the joint tenancy?

Under the minority title theory, a mortgage is treated as a transfer of legal title (a legal fiction); therefore one joint tenant's execution of a mortgage on her share severs the joint tenancy as to that debtor tenant's interest.

Define tenancy by the entirety.

A tenancy by the entirety is a marital estate that can be created only by married partners, in which each spouse owns the whole and which carries an indestructible right of survivorship.

How is a tenancy by the entirety created?

A tenancy by the entirety arises presumptively in any conveyance to married partners unless the instrument states otherwise.

What does it mean that a tenancy by the entirety "can't be touched"?

Because a tenancy by the entirety is impervious to unilateral action, it cannot be reached by the creditors of only one spouse, nor can it be severed by the unilateral conveyance of only one spouse.

How may a tenancy by the entirety be severed?

A tenancy by the entirety may be severed only by the death of a spouse, divorce, the mutual agreement of both spouses, or the execution of a lien by both spouses together.

What happens to a tenancy by the entirety upon divorce?

Upon divorce, the tenancy by the entirety is severed and the former spouses hold the property as tenants in common.

Define tenancy in common.

A tenancy in common is a concurrent estate in which two or more co-tenants each hold a separate, undivided (and not necessarily equal) interest with the right to possess the whole, and with no right of survivorship; each interest is devisable, descendible, and alienable.

What possessory right does each tenant in common hold?

Each tenant in common has the right to possess and use the entire property, regardless of how small that tenant's fractional share may be.

What is ouster?

Ouster is the wrongful exclusion of a co-tenant from possession of all or part of the premises, and it is an actionable wrong.

Absent ouster, is a co-tenant in exclusive possession liable to the others for rent?

Absent ouster, a co-tenant in exclusive possession of the property is not liable to the other co-tenants for the rental value of her own use and occupancy.

What duty does a co-tenant owe when she leases the property to a third party?

A co-tenant who leases the common property to a third party must account to the other co-tenants for their fair shares of the rental profits received.

Can a co-tenant in exclusive possession acquire title to the whole by adverse possession?

A co-tenant in exclusive possession cannot acquire title to the whole by adverse possession, because the possession is not hostile to the other co-tenants, who each retain the right to possess the whole.

How are carrying costs allocated among co-tenants?

Each co-tenant is responsible for paying her fair share of the carrying costs, such as taxes and mortgage interest payments, in proportion to her ownership interest.

Is a co-tenant entitled to contribution for repairs?

A co-tenant who makes reasonable and necessary repairs is entitled to contribution from the other co-tenants for their fair shares, provided she has given them notice of the need for the repairs.

How are improvements treated among co-tenants?

During the life of the co-tenancy a co-tenant has no affirmative right to contribution for improvements; however, at partition the improving co-tenant receives a credit for any increase in value her improvement caused, and bears a debit for any decrease in value it caused.

What are the three types of waste a co-tenant must not commit?

A co-tenant must not commit waste, which takes three forms: voluntary waste (an overt act of willful destruction), permissive waste (damage caused by neglect), and ameliorative waste (a change made without permission that increases the property's value).

Who has the right to partition?

Both a joint tenant and a tenant in common have the right to bring an action for partition; a tenant by the entirety does not, because that estate can be severed only by death, divorce, mutual agreement, or a joint lien.