Property: Intro and Concurrent Estates

5 main areas of real property multiple choice

(1) Ownership in real property; (2) rights in real property; (3) real estate contracts; (4) mortgages and security devices; (5) titles

Ownership in Real property Categories

(1) present estates; (2) future estates; (3) co-tenancy; and (4) landlord-tenant

Rights in Real Property categories

(1) Easements; (2) profits and licenses; (3) restrictive covenants; and (4) fixtures and zoning

Mortgage and Security Devises categories

(1) Mortgages and other security devices; (2) transfers and foreclosure

Titles Categories

(1) Deeds; (2) Recording statutes; (3) record notice, chain of title, and estoppel by deed; (4) adverse possession

Three Types of Concurrent Estates

(1) joint tenancy; (2) tenancy by the entirety; (3) tenancy in common

Joint Tenancy, broadly

Two or more people own with the right of survivorship

Tenancy by the Entirety, broadly

A protected marital interest between spouses with right of survivorship

Tenancy in Common, broadly

Two or more people own without right of survivorship

Joint Tenancy Right of Survivorship

If one tenant dies, that tenant’s share passes to the surviving joint tenants

Joint Tenancy Alienability, Descendibility, and Devisability

A joint tenant’s interest is alienable inter vivos, but not descendible or devisable

Four Unities of Joint Tenancy

At common law, joint tenants must take their interests T-TIP: same Time, same Title, identical, equal Interests, and with the right to Possess as a whole

Expression of Right of Survivorship

The grantor must clearly express the right to survivorship in order to create a joint tenancy. Otherwise, the law presumes the conveyance creates a tenancy in common

Severing a Joint tenancy: Sale

Severing a joint tenancy results in a tenancy in common. A joint tenant can sever by transferring her interest during her lifetime. She can do so secretly without the knowledge or consent of the other joint tenant(s). However, if there are three or more joint tenants, the joint tenancy remains as between the other tenants

Joint Tenancy: Severance and Partition

Partition can be achieved through: (1) voluntary agreement; (2) partition in kind, where the court orders physical division of the property; or (3) forced sale, where the court orders the tenants to sell the land and split the proceeds

Joint Tenancy and Mortgages

In most states, a mortgage is a lien on title and does not sever a joint tenancy. Severance only occurs if the mortgage is foreclosed and the property is sold. In title theory states, a execution of a mortgage destroys the joint tenancy.

Joint Tenancy and Murder

Under the UPC and modern statutes, when a joint tenant unlawfully and intentionally kills a co-tenant, any joint property is transformed into a tenancy in common

Joint Tenancy and Testamentary Disposition

A will is ineffective to work a severance because the testator’s interest terminates upon death

Tenancy by the Entirety

A tenancy by the entirety is a marital estate akin to a joint tenancy. It can be created only between married partners, who take as a fictitious “one person” with the right of survivorship

Creating a Tenancy By the Entirety

In states where it is recognized, it arises presumptively in any conveyance to married partners unless the language of grant clearly indicates otherwise

Tenancy by the Entirety Limits

Creditors of only one spouse cannot use the tenancy to satisfy a debt. One spouse acting alone cannot defeat the right of survivorship by unilaterally conveying to a third party. An individual spouse cannot encumber tenancy by the entirety property, and a deed or mortgage executed by only one spouse is ineffective

Severance of A Tenancy by the Entirety

Only death, divorce, mutual agreement, or execution by a joint creditor of both spouses can sever a tenancy by the entirety. On divorce, the tenancy by the entirety becomes a tenancy in common

Tenancy in Common

The default form of concurrent ownership. No right of survivorship. Each co-tenant owns an individual part and has a right to possess the whole. Each interest is fully devisable, descendible, and alienable

Tenancy in Common: Possession

Each co-tenant has the right to possess all portions of the property but has no right to exclusive possession of any part. If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, they have committed ouster and the aggrieved party can bring an action against them

Rents and Profits from Co-Tenants in Exclusive Possession

In most states, a co-tenant in exclusive possession has the right to retain profits from their use of the property with no obligation to share under normal circumstances.

Tenancy in Common: Profit from third parties

Co-tenants in exclusive possession must also share net profits gained from exploitation of the land, such as mining. A co-tenant who leases all or part of the premises to a third party must account to their co-tenants and provide them a fair share of the rental income

Tenancy in Common Adverse Possession

Unless they’ve ousted the other co-tenant, the co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the whole to the exclusion of the other co-tenant since the “hostile” elements is missing

Tenancy in Common and Repairs

The repairing co-tenant enjoys a right to contribution during the life of the co-tenancy for reasonable and necessary repairs, provided they gave notice to the other co-tenants of the need for repairs

Tenancy in Common and Improvements

During the life of the co-tenancy, there is no right to contribution for improvements made by one co-tenant. However, this may factor into partition.

Tenancy in Common and Waste

A co-tenant must not commit waste. During the life of the co-tenancy, a co-tenant is permitted to bring an action for waste against another co-tenant. Waste includes: voluntary waste (willful destruction); permissive waste (neglect); and ameliorative waste (a unilateral change that increases value)

Tenancy in Common: Partition

tenants in common (and joint tenants) can bring an action for partition. Courts prefer partition in kind when possible, but will permit partition by sale when a fair and equitable division of the property cannot be made. Restraints on partition by co-tenants are valid provided they are limited to a reasonable time

Effect of Concurrent Owner’s Encumbrance

A joint tenant or tenant in common may encumber her interest but may not encumber the interests of other co-tenants. For joint tenants, a mortgagee or lienor runs the risk that the obligated co-tenant will die before foreclosure and extinguish the mortgagee’s or lienor’s interest

Duty of Fair Dealing

A confidential relationship exists among co-tenants. One co-tenant’s acquisition of an outstanding title or lien that may affect the estate is deemed to be on behalf of other co-tenants.