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Property - Joint Ownership
Property Final Exam
Terms in this set (12)
Tenants in Common
Have separate but undivided share of the whole. The interest of each is alienable, devisable, and inheritable.
There is no survivorship rights between tenants in common.
It is presumed that the shares of the tenants are equal, but it is not necessary and the presumption can be overcome by evidence that unequal shares were intended.
Each tenant has the right to possess and enjoy the entire property.
Each tenant does not have to have the same type of estate.
The only unity necessary is unity of possession.
Joint Tenant - Language
Joint tenancy can only be created by express words indicating intent to create a joint tenancy (i.e. survivorship rights are expressly stated).
Under the common law, a joint tenancy is preferred over a tenancy in common.
Under modern trends, a tenancy in common is preferred over joint tenancy.
Joint Tenancy - Four Unities (PITT)
1. Possession: Each joint tenant must have a right to possess of the whole.
2. Interest: All joint tenants must have equal undivided shares and identical interests measured by duration.
3. Time: The interest of each joint tenant must be acquired or vested at the same time.
4. Title: All joint tenants must acquire title by the same instrument or by a joint adverse possession.
Tenancy by Entirety
PITT + Unity of marriage
Divorce terminates a tenancy by entirety; BUT the ex-spouses remain joint tenants.
Neither husband nor wife can defeat right of survivorship through conveyance.
Joint Tenancy - Severance
Almost all states allow this to be done unilaterally.
Traditionally done through a transfer to and from a strawman. Some jurisdictions allow a joint tenant to sever through a direct transfer to himself.
Once severed, the joint tenants become tenants in common. However, if three or more joint tenants exist and one unilaterally severs, the severed party will hold the interest as a tenant in common, but the original two will still hold as joint tenants between themselves.
Joint Tenancy - Mortgage
Title theory - A mortgage conveys a legal title. If a joint tenant takes a mortgage, this would sever the joint tenancy because a mortgage is viewed as a conveyance of a legal estate of vesting title to the property mortgagee.
Lien Theory - Mortgagee does NOT have a legal title, but instead a lien. Mortgage does not act to sever because if giving a mortgage creates only a lien, then a mortgage should have the same effect on a joint tenancy as a lien created in other ways.
Partition In Kind
Authorizes courts of equitable jurisdiction to order, upon the complaint of any interested person, the physical partition of any real estate held by tenants in common, and to appoint a committee for that purpose.
Courts favor a partition in kind.
Partition By Sale
Court orders the property sold at an auction and the proceeds are divided proportionately to shares owned by each of the co-tenants.
1. The physical attributes of the land are such that a partition in kind is impracticable or inequitable AND
2. The interests of the owners would better be promoted by a partition by sale.
An act by one co-tenant that deprives another of the right of possession when occupier refuses to admit another in possession.
Majority Rule: Unless there is an ouster, a co-tenant in exclusive possession does NOT have to account to other co-tenants for rent.
Minority Rule: There is a liability for rent on a continued occupancy after a demand to vacate or pay rent.
Rent and Profits from 3rd Parties
Joint Tenants - Must share rents/profits equally
Tenancy in Common - One who leases only his share does not have to account to other co-tenant for the rent. Otherwise, same as joint tenants.
Cost of Improvements
The non-occupying tenants do not have to contribute, but the cost of improvements will be taken into account during partition to compensate the improver.
Partition in sale: Improver is entitled to credit based on the enhanced value.
Partition in kind: Improver is entitled to his share + cost of improvements (if not prejudiced to other tenants).
A non-occupying tenant can still make improvements or repairs to the property without occupying.
A carrying charge is the cost associated with holding the property. Examples include property taxes, insurance, etc.
When one tenant pays the carrying charges (does not matter whether he occupies the property), he has the right to immediate full reimbursement.
Other sets by this creator
Property - Easement
Property - Landlord/ Tenant
Property - The System of Estates
Property - Adverse Possession
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